Date: 20110930
Docket: T-2132-09
Citation: 2011 FC 954
Ottawa, Ontario, September 30, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NAZAR AHMAD, HAMIDUL AMEEN, PAMELA
CHEUNG, HARJINDER DHESY, NORINE GOODMAN, DEBORAH HAIRE, ANDY HENDERSON, YULIA
HIDIJAT, FANNY JANG, JULIAN LEBOFSKY, RICHARD MALONE, ANNA MICHIELI,
CHRISTINE NG, NELLY NG, INDRAJIT ROY, SUSAN TIERNEY, CHELLIAH VENOGOPAL,
SALIM VIRJI, FRANK WONG, HELEN YI, ANNA YU, AND RANDY ZURIN
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Applicants
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and
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CANADA REVENUE AGENCY
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Respondent
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AMENDED REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review comprises 22 consolidated applications for
judicial review concerning decisions made by Paul Loo in his capacity as a
Decision Reviewer at the
Canadian Revenue Agency (CRA). The
Applicants allege that they were treated arbitrarily during a selection
process, but in each case the Decision Reviewer found no evidence of arbitrary
treatment and declined to order corrective measures. The Applicants now argue
that the Decision Reviewer’s decisions are deficient in number of ways and ask
that the decisions be set aside and referred back to a different decision
reviewer to be decided in accordance with the reasons of this Court.
[2]
Based
on the reasons that follow, this application is allowed in part.
I. Background
A. Factual
Background
[3]
The
Applicants participated in Selection Process Number 2007-6368-ONT-1213-3268
which was posted on July 30, 2007. This competition was to staff 66
newly-created AU-04 positions (Large Case File Auditors, Senior Tax Avoidance
Auditors, and Senior International Tax Auditors) in the Ontario region.
[4]
The
need to fill these positions was the result of an agreement between the
Government of Ontario and the Government of Canada as the administration of
corporate tax in Ontario devolved from the Ontario Ministry of Revenue
to the CRA. Government of Ontario employees were to
become CRA employees. Due to the concerns of the Applicants’ union, the
Professional Institute of the Public Service of Canada (PIPSC), the CRA
promised to appoint an existing CRA employee to an AU-04 position for every
appointment of a provincial employee to an AU-04 position.
[5]
The
competition was tiered, meaning that candidates needed to achieve threshold
results in one tier in order to advance to the next. If a candidate
successfully completed all tiers, he or she would be placed in a pool of
qualified candidates.
[6]
This
competition consisted of three tiers, as follows:
Tier 1:
1) Writing
Skills Test, Level 3 (to be assessed by way of a multiple choice test)
Tier 2:
1) Client
Service Orientation, Level 2 (to be assessed by way of a Competency Based
Organizational Questionnaire)
2) Effective
Interactive Communication, Level 2 (to be assessed by way of a Competency Based
Behavioural Questionnaire)
3) Teamwork
and Cooperation, Level 2 (to be assessed by way of a Competency Based
Behavioural Questionnaire)
4) Legislation,
Policy and Procedures, Level 3 (to be assessed by way of a Portfolio of
Technical Competencies)
5) Auditing,
Level 3 (to be assessed by way of a Portfolio of Technical Competencies)
Tier
3:
1) Analytical Thinking, Level 3 (to be
assessed by way of a targeted behavioural interview, unless a candidate
specifically requested by September 13, 2007 that they be assessed using a
Portfolio of Competencies)
[7]
A
“Portfolio of Technical Competencies” (PoTC) is a standardized evaluation tool
that requires candidates to describe in writing an example of a situation where
he or she demonstrated the competency in question. In this selection process a
PoTC was used to assess candidates’ knowledge of Legislation, Policy and
Procedures (LPP) and Auditing (AUD).
[8]
The
Competencies are defined in the CRA’s Competency Catalogue. Only general
standards are associated with each level. The level 3 which applied to all
competencies is defined as:
Demonstrates solid capability and good
working knowledge,
and independently undertakes a full range of typical challenges.
[Emphasis in the original]
[9]
In
order to assist candidates prepare their writing samples for the PoTC, “Just in
Time” information sessions (JIT sessions) were held by Technical Competency
Assessors (TCAs) in various CRA offices. A TCA is accredited by CRA senior
management based on technical expertise and experience, and is trained to
assess candidates in a competition. These JIT sessions were meant to provide
candidates with an opportunity to ask questions and discuss examples with the
aim of ensuring that candidates understood the expectations for the PoTCs.
There is a discrepancy in the parties’ materials as to exactly what information
was passed on by the TCAs at these sessions.
[10]
Once
the Applicants submitted their PoTCs, they were independently assessed by two
TCAs and both results were calibrated to produce a final score. This is the
usual practice at the CRA.
[11]
According
to the Respondent’s materials, during the summer of 2008, PIPSC put pressure on
the CRA to complete the AU-04 selection process. Because of high failure rates
on the technical competencies, senior management was concerned that the
selection process would not yield a sufficient number of candidates to satisfy
the matching commitment. In order to increase the pool of qualified
candidates, the CRA decided to allow candidates who had failed the Writing
Skills Test to re-write it. The CRA decided that it would not be practical to
allow candidates who had failed the PoTC components to resubmit examples
because that would prove to be too costly, too timely and inefficient.
[12]
The
Applicants were among those who did not achieve the required results on the
technical competencies and thus were not placed in the AU-04 pool. The
Applicants failed to achieve a Level 3 on one or more of the LPP, AUD and Analytical
Thinking (AT) competencies.
[13]
The
Applicants all exercised the available recourse options pursuant to the CRA’s
Directive on Recourse for Assessment and Staffing. For candidates wishing to
challenge his or her treatment in the assessment stage of an internal selection
process, this consists of “Individual Feedback”, followed by “Decision Review”.
The goal of these mechanisms is to determine if candidates have been treated
arbitrarily. “Arbitrary” is defined in the Directive as:
In an unreasonable manner, done
capriciously; not done or acting according to reason or judgment; not based on
rationale, or established policy; not the result of a reasoning applied to
relevant considerations; discriminatory i.e., as listed as the prohibited
grounds of discrimination in the Canadian Human Rights Act.
[14]
Individual
Feedback was provided by the TCAs who had assessed the competency in question.
Their role was to meet with the candidate and explain the basis upon which the
assessment was made. If dissatisfied with the results of Individual Feedback,
the candidate was able to request Decision Review, which was to be conducted
either verbally or in writing.
[15]
Prior
to Decision Review, a Fact-Finder was appointed by the Decision Reviewer to
gather relevant facts. A Fact-Finding Report was provided to the Decision
Reviewer for each Applicant.
B. Impugned
Decisions
[16]
Decision
Review meetings took place between March 2009 and November 2009. In each case,
the Decision Reviewer concluded that the Applicants were not treated in an
arbitrary manner and he did not order any corrective action.
II. Issues
[17]
The
Applicants submit that this application raises 8 issues:
(a) Did the Decision Reviewer fail
to provide sufficient reasons?
(b) Did
the Decision Reviewer wrongfully decline jurisdiction over many of the
Applicants’ allegations?
(c) Did
the Decision Reviewer render an unreasonable decision in addressing the
allegation that the CRA did not ensure consistency in rating competencies?
(d) Did
the Decision Reviewer render an unreasonable decision in permitting the CRA to
change the selection process to allow excluded candidates to re-write the
Writing Skills Test, without providing a similar re-testing opportunity in
relation to the other technical competencies?
(e) Did
the Decision Reviewer render an unreasonable decision in permitting the CRA to
change the definition of the Analytical Thinking competency part way through
the selection process without communicating this change to all candidates?
(f) Did
the Decision Reviewer err in failing to provide an opportunity for all
Applicants to meet with the Decision Reviewer prior to rendering his Decisions?
(g) Were the Applicants deprived of
their rights to disclosure?
(h) In
addition to the above allegations, did the Decision Reviewer err in addressing
the particular allegations made by Ms. Haire, Mr. Roy, Ms. Jang, Ms. Tierney
and Ms. Yi?
[18]
The
Respondent suggests, and I agree, that the above allegations all fall into
three main categories:
(a) Was the decision that the Applicants
were not treated arbitrarily during the selection process reasonable?
(b) Did
the Decision Reviewer err in determining that certain allegations fell outside
the scope of Decision Review?
(c) Was the Applicants’ right to
procedural fairness breached during Decision Review?
[19]
Having
reviewed all of the affidavits of the Applicants, I believe the allegations are
best summarized as below:
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Allegation
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Applicant
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The
competencies were not marked in a fair, consistent and objective manner.
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All 22 Applicants:
1. Nazar Ahmad
2. Hamidu Ameen
3. Pamela Cheung
4. Harjinder Dhesy
5. Norine Goodman
6. Deborah Haire
7. Andy Henderson
8. Yulia Hidijat
9. Fanny Jang
10. Julian Lebofsky
11. Richard Malone
12. Anna Michieli
13. Christine Ng
14. Nelly Ng
15. Indrajit Roy
16. Susan Tierney
17. Chelliah Venogopal
18. Salim Virji
19. Frank Wong
20. Helen Yi
21. Anna Yu
22. Randy Zurin
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CRA
made changes mid-process that resulted in arbitrary treatment: candidates
who failed the Writing Skills Test were permitted to re-write, but those who
failed the PoTC were not
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1. Norine Goodman
2. Richard Malone
3. Christine Ng
4. Nelly Ng
5. Randy Zurin
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The
change to the definition of Analytical Thinking was not communicated to all
candidates
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1. Yulia Hidijat
2. Helen Yi
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The
Decision Reviewer wrongly concluded that certain complaints fell outside the
scope of Decision Review
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1. Norine Goodman
2. Fanny Jang
3. Richard Malone
4. Christine Ng
5. Nelly Ng
6. Susan Tierney
7. Salim Virji
8. Helen Yi
9. Anna Yu
10. Randy Zurin
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The
Decision Reviewer failed to give the Applicant an adequate opportunity to be
heard
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1. Deborah Haire
2. Andrew Henderson
3. Fanny Jang
4. Julian Lebofsky
5. Susan Tierney
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The
Decision Reviewer failed to give adequate reasons for his decision
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All
22 Applicants
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The
Applicants were not afforded adequate disclosure
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No
access to Fact-Finder Report:
1. Nazar Ahmad
2. Hamidu Ameen
3. Pamela Cheung
4. Harjinder Dhesy
5. Deborah Haire
6. Andy Henderson
7. Yulia Hidijat
8. Fanny Jang
9. Julian Lebofsky
10. Anna Michieli
11. Nelly Ng
12. Indrajit Roy
13. Susan Tierney
14. Chelliah Venogopal
15. Salim Virji
16. Frank Wong
17. Helen Yi
18. Anna Yu
No
access to Assessment Worksheet prior to Decision Review meeting:
All
of the above Applicants, as well as Norine Goodman, Richard Malone and Randy
Zurin.
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TCAs
biased against people working in appeals
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1.
Andy
Henderson
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Decision
Reviewer exhibited bias
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1.
Helen Yi
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Candidates were treated differently
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1.
Deborah
Haire
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3rd TCA was consulted
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1. Harjinder Dhesy
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Fact-finder
did not complete his report
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1. Harjinder Dhesy
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III. Standard
of Review
[20]
The
content of the decision of a Decision Reviewer is reviewable on a standard of
reasonableness. As Justice Leonard Mandamin explained in Wloch v Canada (Revenue
Agency),
2010 FC 743 at para 21:
[21] […] at issue is whether
the reviewer considered the appropriate factors in arriving at his decision.
The Decision Reviewer must review the facts and determine if the action
offended the directive against arbitrary treatment. I concluded in Gerus v Canada (Attorney General), 2008 FC 1344 at paras 15, 16
that the content of a Decision Review is a mixed question of fact and law that
should be reviewed on the standard of reasonableness. […]
[21]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the
reasonableness standard requires 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 acceptable outcomes that are
defensible in respect of the facts and law.
[22]
Questions
of procedural fairness are reviewed against the standard of correctness (Ng v Canada (Attorney
General),
2008 FC 1298, 338 FTR 298 at para 28).
[23]
The
Applicant argues that the question of jurisdiction should be reviewed on the
correctness standard. As it is a question of policy and/or discretion, and the
interpretation of the CRA’s own Directive, I agree with the Respondent that the
question of jurisdiction should also be decided on the reasonableness
standard. The Supreme Court of Canada indicated in Dr Q v College of
Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] SCJ No 18
(QL) that increased deference is called for when the legislation being
interpreted is intended to resolve and balance competing policy objectives for
the interests of various groups (see Professional Institute of the Public
Service of Canada v Canada (Customs and Revenue Agency), 2004 FC 507, 251
FTR 56 at para 82)
IV. Argument
and Analysis
Did the Decision Reviewer
Wrongfully Decline Jurisdiction Over Many of the Applicants’ Allegations?
[24]
The
main dispute between the parties centers on a disagreement over the role of the
Decision Reviewer. The Applicants argue that many of their allegations were
wrongfully ignored because the Decision Reviewer claimed that they were not
within his purview on Decision Review. The Applicants have identified four
specific allegations that the Decision Reviewer declined to address:
1) The
CRA provided misleading examples of acceptable PoTC submissions;
2) The
PoTC word limit was unfair;
3) The
CRA continued to use the PoTC assessment tool, despite being aware that this
tool did not adequately evaluate the competencies in question; and
4) The
TCAs did not have the required expertise.
[25]
In
response to these issues, the Decision Reviewer took the position that, “these
concerns do not specifically relate to any arbitrary treatment with respect to
your assessment and will not be addressed as they fall outside the purview of
the Decision Review process.” The Applicants argue that the Decision Reviewer
erred in refusing to take jurisdiction over these issues.
[26]
The
Respondent takes the position that the above concerns involve assessment
methodologies and the general administration of the selection process and therefore
fall outside the scope of Decision Review. The Respondent argues that the
Decision Reviewer reasonably concluded that he did not have the jurisdiction to
deal with these complaints as his review is limited to determining whether
candidates were treated in an arbitrary manner. This involves ensuring that
the chosen evaluation criteria has been consistently and appropriately applied,
but, the Respondent submits, it is not the Decision Reviewer’s role to
undermine or disregard established guidelines.
[27]
I
reviewed the Directive to get a better sense of the intended jurisdiction of
the Decision Reviewer and the scope of Decision Review. The Directive on
Recourse for Assessment and Staffing instructs that Decision Review should
focus on how the individual was treated in the process, and not the evaluation
of other candidates or employees (Directive para 4.1, Respondent’s Record vol
1, tab 3). The review “must be limited to circumstances that are directly
related to the stage in question of the…internal selection process,” (para
4.3). Once again, the CRA defines “arbitrary” as:
In an unreasonable manner, done
capriciously; not done or acting according to reason or judgment; not based on
rational or established policy; not the result of a reasoning applied to
relevant considerations; discriminatory, i.e., as listed as the prohibited
grounds of discrimination in the Canadian Human Rights Act
[28]
In
terms of the kinds of corrective measures the Decision Reviewer can order,
there in not much detail other than para 9.2.15’s imperative to, “limit
corrective measures to those actions required to correct the error made during
that…stage of the internal selection process.”
[29]
Many
of the disputed allegations concern the policies that were applied to the
selection process as a whole – criticisms regarding the tools chosen to assess
competencies and how these PoTCs were marked – and other established practices
of the CRA, not specifically related to this selection process – the qualifications
of the TCAs for instance.
[30]
I
accept that the CRA was under some pressure and accept that Parliament has
granted the CRA the authority to design and administer staffing procedures. I
also accept that certain discretionary decisions will need to be made during a
staffing process, especially a large and complex one – words, which by all
accounts, describe this particular competition. As such, I share the view of
the Respondent.
[31]
These
allegations are outside of the scope of Decision Review. It is not the role of
the Decision Reviewer to undertake a complete review of every challenge an
Applicant may bring with respect to the design and administration of the CRA
staffing process. This is not to say that these issues do not present valid
concerns seemingly shared by numerous CRA employees that CRA management might
choose to consider and address in some way at some point in the future. Only
that I do not see how these wide-sweeping concerns essentially regarding
established CRA policies can be addressed either by the Federal Court on
judicial review of a decision emanating from the Decision Review process, or by
a Decision Reviewer during Decision Review. By the time this file reaches the
Federal Court, years have passed and two levels of review have taken place, by
bodies with more subject-matter expertise than the Court. The Decision
Reviewer and this Court are, by legislation, limited in their powers upon
review.
[32]
In
my view the Decision Reviewer acted reasonably in not addressing discretionary
matters related to the design of the competition. Nonetheless, I will examine
the Applicants’ claims in turn. Specifically the Applicants find fault with
the Decision Reviewer’s refusal to address:
Misleading
Examples Were Provided to the Applicants
[33]
The
Applicants submit that when they attended the Just-in-Time sessions they were
under the impression that the examples discussed would warrant a Level 3 rating
for the LPP and AUD competencies. The Applicants argue that they relied on
these examples in preparing their own submissions to their detriment, as it
became apparent during the recourse process that the JIT examples were overly
simplistic and did not meet the competency guidelines to attain a Level 3. The
Applicants claim they were mislead, and thus treated unreasonably.
[34]
The
Respondent’s material indicates that the TCA’s running the sessions did not
indicate what level could be achieved with the examples. This is contrary to
the affidavit evidence filed by 14 of the Applicants.
[35]
The
Decision Reviewer found that this concern fell outside of his jurisdiction.
Although what the Applicants label as a “fundamental misrepresentation” is
disconcerting, this is a case of the general being over-ruled by the specific.
In each case the Decision Reviewer found that the TCAs had reasonably assessed the
Applicants’ PoTCs. All candidates were exposed to the same examples at the JIT
sessions through a standardized power-point presentation, although the evidence
on how the examples were described is contradictory. All Applicants also
thought their submissions exceeded the quality of the examples. Again, the
Decision Reviewer is limited to focusing on how the individual was treated in
the process.
[36]
Specifically,
Fanny Jang claimed to have relied on the representations of the TCA at the JIT that
a “no-change” assessment was an acceptable example for her PoTC. However,
during Individual Feedback she was told that using a no-change assessment as an
example was not a good idea for the LPP competency. Ms. Jang argues that it
was unreasonable for the TCAs to initially tell her that a no-change submission
was acceptable and then criticize her submission on that basis.
[37]
The
Respondent argues that Ms. Jang’s submission did not receive a Level 3 rating
for reasons unrelated to the fact that it was a no-change assessment. The TCA
found that she failed to support her final position with legislation. Having
found that determination to be reasonable, the Decision Reviewer was not
required to determine whether or not any mis-information had been given to Ms.
Jang at the JIT session, since it was immaterial to the outcome. I adopt the
Respondent’s position on this point, and see no reason to doubt the assertion,
whether provided at the JIT session or not, that a legislatively supported
no-change assessment could warrant a Level 3 rating.
Portfolio
Word Limit Unfair
[38]
Several
Applicants claimed that the 800 PoTC word limit was unfair because it was only
sufficient for candidates working in departments dealing with less complex
transactions. I find the Decision Reviewer was reasonable in refusing to
address this issue. All candidates were subject to the same word limit, and
any institutional bias that the limit may camouflage, is beyond the scope of
Decision Review.
Continued
Use of the PoTC Assessment Tool
[39]
The
Applicants submit that the CRA was aware that the PoTC assessment tool did not
properly evaluate an auditor’s knowledge and understanding of tax law, nor did
the standardized test for the LPP competency recognize the varying degrees of
knowledge of tax legislation. This was conceded in a document prepared by the
CRA’s Working Group on Technical Competencies (see exhibit L to the Bittman
affidavit, Applicants’ Record, vol 2, tab 3L). The Applicants submit that the
CRA acted unreasonably in deciding to use a standardized assessment tool that
it knew was flawed. The Applicants argue that the Decision Reviewer had the
jurisdiction to address this issue.
[40]
Again,
I disagree with the Applicants’ submissions. The Decision Reviewer is mandated
to focus on how the individual was treated in the process, not the flawed
design of the process as a whole. Para 9.2.8 does require the Decision
Reviewer to inform the Resourcing Standards and Assessment Services of all
Decision Review cases relating to standardized assessment tools for statistical
purposes. This suggests that the CRA intends to deal with issues with
standardized assessment tools, but outside of the Decision Review process.
TCAs
Did Not Have the Required Expertise
[41]
The
Applicants submit that the TCAs did not have the technical experience necessary
to properly evaluate their submissions. All TCAs were qualified as per the
CRA’s policy. Although the Applicants argue that the CRA’s guidelines are not
sufficiently stringent to ensure that the TCAs possess the technical knowledge required
to assess issues addressing complex tax issues, this is not an issue that can
be addressed or resolved through Decision Review. The definition of arbitrary
includes, “not based on rationale or established policy.” As the fact-finder wrote
in one report, “it is a necessary and reasonable assumption that TCAs are
properly trained and qualified to conduct the assessments”. The Decision
Reviewer reasonably declined to take jurisdiction over the matter.
Conclusion to
Jurisdiction Question
[42]
Pursuant
to sections 53 and 54 of the Canada Revenue Agency Act, (SC 1999, c 17)
the CRA has exclusive authority to appoint any employee it considers necessary
for the proper conduct of its business and the ability to develop a program
governing staffing and recourse. The Applicants essentially complain that
without the jurisdiction to address the Applicants’ claims, the recourse
process becomes meaningless. The Applicants point to the fact that
approximately 84 substantive appointments were made in January 2009 even
though the Applicants had not yet completed recourse. A CRA Staffing Bulletin
warns against such practice, as making appointments pending completion of
recourse gives the perception that recourse is not meaningful.
[43]
The
Applicants may have valid concerns, but this Court needs to respect the
authority delegated to the CRA to govern its own staffing procedures. Of
course these procedures must conform to the principles of procedural fairness,
but aside from that, the CRA has been afforded the leeway and discretion to act
as it deems necessary. The Staffing Bulletin referred to also notes that
manager’s may establish a pool prior to recourse being complete, but that they
must assess the impact of their decision and be cognizant of any associated
risks. Absent proof to the contrary, I can only assume that management
undertook such an analysis before deciding to proceed as it did in this
competition, a decision which is within its scope of delegated authority.
Was the Decision that the Applicants Were
Not Treated Arbitrarily During the Selection Process Reasonable?
[44]
The
Decision Reviewer came to the conclusion that none of the Applicants were
treated arbitrarily. The Applicants disagree with this conclusion and submit
as evidence of arbitrary treatment: 1) the lack of consistency in rating
competencies between offices and the time when the competencies were evaluated;
2) that candidates excluded from the competition were allowed to re-write the
Writing Skills Test, but candidates were not provided a re-testing opportunity
in relation to other technical competencies; 3) the definition of the
Analytical Thinking competency was changed part way through the selection
process but not communicated to all candidates; 4) in certain cases the
fact-finding report concluded that there was arbitrary treatment but this was
not addressed by the Decision Reviewer.
Lack
of Consistency
[45]
The
Applicants submit that the CRA failed to implement any kind of control
procedure to ensure that making between teams, or even within the same team due
to the length of the process, remained consistent throughout the selection
process. The Applicants argue that this failure is illustrated through the
differing pass rates between offices. The pass rate for the CRA’s Toronto Centre
office was significantly higher than for the other offices in the greater Toronto area. In
one of her reports the fact-finder noted that, “the assessments made by the
teams were not reviewed to ensure consistency of marking between teams. The
candidates may well have fulfilled the criteria of “significant analysis” by a
different team,” (Applicants’ Record, vol 3 tab 9e). The Applicants submit
that the Decision Reviewer refused to adequately address the issue, responding
only that, “The TCAs are selected and accredited based on specific criteria
developed by CRA’s Human Resources Branch,” (see for example Henderson decision,
Applicants’ Record, vol 3 tab 10l). The Applicants submit that the CRA has an
obligation to consider whether assessment standards were applied consistently,
and that this obligation was shirked.
[46]
From
the Respondent’s materials, I understand that the CRA has taken the position
that evidence of this concern is related to the allegations that the PoTC is a
flawed instrument and that the TCAs were not adequately qualified and failed to
consistently apply the selection standards. The Respondent submits that the
Decision Reviewer’s decision that the Applicants were not treated arbitrarily
despite this allegation is reasonable. The TCAs were all CRA certified and
trained. The selection process was carried out as per CRA policy. The
Decision Reviewer found that all of the Applicants were given an opportunity to
discuss their concerns regarding the PoTC and marking schemes in great detail
with the TCA. The Decision Reviewer’s sole job was to determine if the
Applicants had been treated arbitrarily, not substitute his opinion for that of
the TCA or engage in a statistical analysis of the entire selection process.
[47]
Once
again, I agree with the Respondent on this point. The Decision Reviewer is not
mandated to conduct a de novo, substantive review of the Applicants’
PoTC submissions. More than anything, he has a procedural role, and is to
ensure that individuals are not treated arbitrarily in the selection process.
He is not an ombudsman tasked with evaluating the design of the entire
procedure. All PoTCs were marked in accordance with CRA policy. The
Applicants submit that the CRA has an obligation to ensure consistency in
marking against standards. This is indeed true (see Sargeant v Canada (Customs and
Revenue Agency), 2002 FCT 1043, 225 FTR 184 at para 38). In my view,
having two TCAs mark submissions against set criteria, calibrating the scores,
and then allowing for the review of these decisions is exactly the fruit of
that obligation. Absent some kind of clear and convincing indication that
there was a pattern of inconsistency, the Decision Reviewer’s decision is
reasonable.
[48]
Decision
Review is focused on the treatment of the individual within the process and is
not designed to cast aspersion on potential flaws of the process as a whole.
Ms. Ng’s claim that a colleague used a less complicated section of the Income
Tax Act, (RSC, 1985, c 1 (5th Supp)) than she did in her PoTC but received
a better score, is not the kind of allegation that Decision Review was intended
to deal with. However, the fact that the Decision Reviewer in some cases
failed to comment on the fact-finding report suggesting inconsistency is of
some concern, and will be addressed later in these reasons.
Candidates Were Allowed to Re-write the
Writing Skills Test, but Were Not Allowed to Re-submit PoTCs
[49]
According
to the Respondent, pressure from the Applicants’ union to fill the required
number of AU-04 positions resulted in the decision to allow candidates who had
failed the Writing Skills Test to re-write the test, despite the fact that the
180 day re-test period had not expired. The Applicants argue that this
decision was unfair to candidates who had failed either the AUD or LPP
competencies, because there was no similar opportunity to acquire the required
levels and re-enter the competition.
[50]
The
Respondent argues that this was an internal, discretionary measure taken to
ensure that the matching appointments were completed in an efficient and timely
manner. Moreover, this decision was consistent with the CRA Staffing Program
and the Staffing Principles relating to efficiency, adaptability and
productiveness.
[51]
Tier
1 of the competition required candidates to achieve a Level 3 on the Writing
Skills Test. This was assessed by way of a multiple choice test. This test is
apparently very easy to administer and requires few resources in the way of
time and man-power. An additional consideration was that the group who had
failed the test was relatively small. Allowing a re-write of the test would
potentially increase the pool of candidates without causing undue delays.
[52]
Though
the decision to allow the re-write was unusual, I do not agree that it resulted
in the arbitrary or unreasonable treatment of the Applicants. The Writing
Skills Test was used as an assessment of a different tier of the competition.
I cannot see how allowing additional candidates to continue onto to tier 2,
where they would be measured against the same criteria as the Applicants,
disadvantaged the Applicants. If some candidates had been allowed to resubmit
their PoTCs in an effort to fulfill the tier 3 requirements, and some had not,
that would have been arbitrary treatment. That would have been unfair. I am
not persuaded that the Decision Reviewer erred by failing to order corrective
action in response to this allegation. When a selection process is lengthy,
the vagaries of time may lead to differing experiences for different candidates,
despite the best efforts of the CRA.
The Definition of the Analytical Thinking
Competency was Changed Part Way Through the Selection Process
[53]
The
CRA changed the definition of the Analytical Thinking competency on
September 29, 2008,
subsequent to the JIT sessions and the circulation of an information sheet
concerning the assessment of Analytical Thinking through a Targeted Behavioural
Interview, referring readers to the then current definition. Two of the Applicants,
Ms. Hidijat and Ms. Yi relied on the old definition when preparing their
submissions. According to Ms. Hidijat’s affidavit, some candidates who
chose to use the Portfolio of Competencies assessment option received an e-mail
advising that the definition had changed, and granting them an extension of
time to prepare their submissions. Candidates who chose the Behavioural
Interview assessment option, such as Ms. Hidijat, were not notified of the
change. The Applicants argue that this is arbitrary treatment. The Decision
Reviewer only responded that, “this practice was applied consistently to
candidates that elected to be assessed by TBI” (Hidijat decision, Applicants’
Record, vol 3 tab 11n).
[54]
I
am of the view that the CRA was able to change the definition as to what
constitutes Analytical Thinking mid-stream, but the failure to equally bring
this change to the attention of all candidates, led to a failure to provide
procedural fairness in certain specific situations. As a result, I agree
with the Applicants that the Decision Reviewer’s response was unreasonable. To
suggest that there was no unfairness because an entire subset of candidates,
those who chose to be assessed via interview, was similarly disadvantaged is
not reasonable. As the Applicants argue, if some candidates are given notice
that their submissions will be assessed against a new definition, all
candidates must be given the same notice. If some candidates are given an
extension of time, all must be given an extension of time to alter their
submissions.
[55]
The
Respondent only submits that all CRA employees were informed of the change by
way of a Staffing Bulletin issued on September 29, 2008, and that it is the
responsibility of all CRA employees to keep themselves informed and up to date
with policy changes that may have an impact on their career. The Respondent,
however, does not seem to refute that certain candidates who elected to submit
a portfolio were given explicit notice and a correlating extension of time.
The fact-finder spoke to Jack Dempsey, the Board Chair, who explained that it
was unnecessary to inform the candidates who were being assessed by way of an
interview of the change, because they are not assessed on the “Summary of Event
Statement” that they must prepare for the interview, but only on their
responses during the interview. On the other hand, the portfolio candidates
were required to submit a template, and the template changed when the
definition changed. I do not find this explanation compelling. Such
inconsistencies lend themselves to an appearance of arbitrary treatment which
is best avoided. That some candidates were given notice and some were not is
arbitrary, and it was not reasonable for the Decision Reviewer to fail to
recognize this, and deal with it more thoroughly in the course of his decision.
Were the
Applicants Denied Procedural Fairness?
[56]
The
Applicants claim that their right to procedural fairness was breached in three
ways: 1) the reasons
provided by the Decision Reviewer were inadequate; 2) the Decision Reviewer did
not afford all Applicants the opportunity to meet with him prior to rendering
his decisions; and 3) the Applicants were deprived of their right to
disclosure.
[57]
In
Ng, above, Justice John O’Keefe applied the factors laid out by the
Supreme Court of Canada in Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 to the CRA’s Decision
Review process. He concluded, and I accept, that the content of the duty of
procedural fairness owed to the employee in this context falls within the
middle to lower end of the spectrum (at para 31). However, even taking into
account all of the contextual background of this staffing process and the
Decision Review process, it is clear to me that in some instances the decisions
of the Decision Reviewer with respect to some of the Applicants fell short of
what is required to fulfill even a mid –to-lower level of procedural fairness.
Were
the Reasons Adequate?
[58]
The
Applicants submit that the Decision Reviewer failed to provide adequate reasons
for his decision to reject their claims of arbitrary treatment. Despite the
Applicants’ detailed submissions, the Decision Reviewer only provided a terse
decision with no meaningful analysis of the Applicants’ claims. The Decision
Reviewer seemed to accept the conclusions of the TCAs without independently
evaluating the reasonableness of their findings. The Applicants argue that
this approach rendered the recourse process futile and illusory.
[59]
The
Respondent argues that adequacy of reasons needs to be considered in the
context of, “the day-to-day realities of administrative agencies and the many
ways in which the values underlying the principles of procedural fairness can
be assured,” (Baker, above, para 44). While the Directive on Recourse
requires the Decision Reviewer to “make the final decision in writing and
ensure that it is recorded in the staffing file or the employee’s competency
profile,” (Directive para 9.2.6), it does not mandate that detailed
written reasons be provided. The Respondent, therefore, takes the position
that the Decision Reviewer’s written decision was adequate in each case given
the significant volume of requests for Decision Review, and the administrative
restraints associated with responding to each complaint as efficiently and
timely as possible.
[60]
While
I accept that the Decision Reviewer is under certain administrative
constraints, and Parliament has given the CRA the authority to set out
procedures in order to make these decisions in an efficient fashion, he is
still obliged to provide reasons that assure the Applicants that he considered
their submissions and allows them to decide whether to exercise judicial review
(Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA
151, [2007] 1 FCR 490). In order to pass the scrutiny of judicial review, the
reasons must be found to render the decision justified, transparent and
intelligible and enable the Court to conduct a meaningful review.
[61]
It
is necessary to view each set of reasons in light of the conclusions I have
come to elsewhere in this decision, and with reference to the specific nature
of the Applicant’s complaints to come to an overall conclusion as to whether
the reasons were adequate to fulfill their purpose. The decisions were pro
forma for the most part, however, it is clear to me that in most cases the
Decision Reviewer engaged with the Applicant’s specific set of allegations and
attempted to explain his reasoning. I find that most of the reasons adequately
fulfill their purpose, and allowed the Applicants to decide whether to exercise
their right to have the decision judicially reviewed.
[62]
I
am troubled in some instances with the adequacy of reasons provided to the
Applicants. I am of the opinion that in some cases, the reasons were
deficient. The Decision Reviewer’s role is to provide another level of review,
not to sign-off on a decision that was adequately explained to a candidate at
the earlier instance. I am most concerned with the decisions pertaining to the
allegations of Deborah Haire, Indrajit Roy, Susan Tierney and Anna Yu. In
these three cases the fact-finder prepared a report containing a preliminary
finding of arbitrary treatment. The Decision Reviewer did not acknowledge or
address this preliminary finding in his reasons. Although, I agree with the
Respondent that that Decision Reviewer is not obliged to accept the
fact-finder’s conclusions, he or she is required to explain the reasons for his
or her own conclusion.
[63]
The
Respondent argues that the role of the fact-finder is to gather facts, but not
to interpret these facts. The Respondent says the fact-finder over-stepped her
role when she made preliminary findings. With respect, I do not see any
support for this contention in the Directive. Para 9.2.1 allows a Decision
Reviewer to appoint a fact-finder to gather facts on his or her behalf,
however, the provision notes that the Decision reviewer remains responsible for
making the final decision in the review. The fact-finder plays a pivotal role
in the process. The Decision Reviewer is free to disagree with the assessment
of the fact-finder, but, after these comments are entered onto the record, the
Decision Reviewer must explain why he or she is rejecting them (Girouard v Canada (Royal
Canadian Mounted Police), 201 FTR 219, 105 ACWS (3d) 680 at para 25).
If the Decision Reviewer fails to do this, his reasons risk being found
wanting.
Was the
Decision Reviewer Required to Meet with the Applicants?
[64]
Five
Applicants claim that they were denied the opportunity to meet with the
Decision Reviewer and present their case (Haire, Henderson, Jang, Lebofsky and
Tierney). The Directive required the Decision Reviewer to conduct the Decision
Review meeting with the candidate, but gives the Decision Reviewer the choice
of whether to do it verbally (in person or by telephone) or in writing (by
letter or e-mail).
[65]
From
what I gather, the Respondent takes the position that all of the Applicants
were given a fair opportunity to be heard and at a minimum, got to meet with a
fact-finder who gathered information and accepted submissions on behalf of the
decision-maker. It seems as though the Respondent does not dispute that some
Applicants did not meet with the Decision Reviewer.
[66]
If
this is the case, the Respondent has breached its recourse policy; employees
must be given an opportunity to present their views at the Decision Review
meeting (Gerus v Canada (Attorney General), 2008 FC
1344, 337 FTR 256 at para 29). A policy which the Applicants legitimately
expected would be followed. Moreover, it seems disingenuous on the one hand
for the Respondent to argue that the fact-finder over-stepped her role when she
made preliminary findings, but argue on the other that the Applicants did not
need to meet with the Decision Reviewer because they met with the fact-finder.
As the Applicants submit, the Respondent has committed a reviewable error in
failing to abide by its own procedures (Gilchrist v Canada (Treasury
Board),
2005 FC 1322, 281 FTR 135 at
para 13).
Did the
Decision Reviewer Meet his Disclosure Obligation?
[67]
The
Applicants submit that they were not provided with the Assessment Worksheet
(Marking Guide, with notes) during Individual Feedback in violation of the
CRA’s own policy on disclosure and despite having specifically requested this
information. 13 of the Applicants claim that they were not provided with any
access to the Assessment Worksheet during Decision Review either. The
Applicants argue that this amounts to a breach of procedural fairness in that
they did not have a “meaningful ability to know of evidence relevant to [their]
complaint” upon which the Decision Reviewer relied (Forsch v Canada
(Canadian Food Inspection Agency), 2004 FC 513,
251 FTR 95 at para 29). Furthermore, the Applicants submit that the
CRA breached its continuing disclosure obligation by failing to provide some
Applicants with access to their Individual Feedback Report and the Fact-Finding
Report.
[68]
The
Respondent takes the position that as a standardized assessment tool, the
Assessment Worksheet is shielded from disclosure. Disclosing standardized
assessment tools risks compromising the integrity of the selection process.
The Respondent submits that although the Worksheet was not disclosed prior to
the Individual Feedback sessions, the contents of the document was discussed
with the Applicants either during that session or at the Decision Review stage
and so the Applicants were aware of the contents of the worksheets and were
able to ask questions and raise concerns regarding their assessment.
[69]
While
the Respondent correctly submits that the Directive on Recourse protects the
disclosure of information that would compromise the security of standardized
assessment tools, the CRA has confirmed that it is internal policy to allow
candidates to view the assessment worksheets during recourse in the presence of
an authorized person “to get meaningful information on their decision, as to
the criteria used by them, and on the requirements [the candidate] did not meet
in order to improve your performance for the future...” (Applicants’ Record vol
2 pg 190). All of these materials, the Assessors Worksheet, the Individual
Feedback Report and the Fact-Finding Report were all before the Decision
Reviewer. The Applicants ought to have had an opportunity to know the contents
of these documents, and respond to them (Ng, above, at paras 33 and
36). In my view, this does not necessarily require providing Applicants with a
copy of the documents.
[70]
In
the present matter, I accept that the CRA acted properly in exercising its
discretion in deciding not to provide a copy of the individual Assessment
Worksheets to each Applicant and found that each Applicant received sufficient
disclosure during the Individual Feedback sessions with the TCAs. However, the
Applicants should have been able to view the contents of the Assessment Worksheets
during Individual Feedback and prior to Decision Review. It would be important
for the Applicants to access the information contained therein in order to
establish arbitrary treatment. Justice O’Keefe stated in Ng, above,
that the CRA’s recourse program vests the decision-maker with “the discretion
to ensure that disclosure is provided where necessary to ensure that procedural
fairness is not violated,” (at para 35). Although the contents of the reports
would have necessarily been generally discussed as the subject-matter of
Individual Feedback, the internal policy seems quite clear that candidates
should be able to “view” the worksheets in the presence of an authorized
person. A general discussion does not suffice. It follows that those Applicants
who were unable to view their Assessment Worksheet suffered a violation of
their right to procedural fairness.
[71]
Further,
I find that the CRA acted properly in declining to provide a copy of the
Individual Feedback Report that was prepared subsequent to the Individual
Feedback meetings. I take the position that the Applicants were provided with
adequate disclosure given that the results of the session were communicated to
them at the end of the session. I accept that the Applicants suffered no
prejudice as evidenced by all of the Applicants exercising their right to seek
a further review through the decision review process within the seven day time
limit imposed by the CRA staffing resolution process.
[72]
It
is clear to me that all Applicants should have the right to discuss directly
with the Decision Reviewer, either in-person or by writing, the contents of the
Fact-Finding Report. The Applicants must either be able to see the contents of
the report during the course of the meeting with the Decision Reviewer, or if
the Decision Review is to proceed by writing, a copy of the Report must be
disclosed to the Applicant so that the Applicant may prepare written
submissions for the Decision Reviewer’s consideration. It follows, therefore,
that in any of the cases where the Applicants did not have the opportunity to
see and discuss the Fact-Finding Report or see the Fact-Finding Report and
prepare written submissions, the Applicants were denied procedural fairness.
Clearly, it is not fair for the Fact-Finding Report to be available in some
instances, but not in others.
Conclusion
[73]
Applying
the above conclusions to the applications, the following applications are
allowed:
[74]
Yulia
Hidijat and Helen Yi, because they were not informed of the change to the
definition of Analytical Thinking;
[75]
Deborah
Haire, Andrew Henderson, Fanny Jang, Julian Lebofsky, and Susan Tierney because
they were not given the opportunity to be heard by the Decision Reviewer;
[76]
Deborah
Haire, Indrajit Roy, Susan Tierney and Anna Yu because the Decision Reviewer
failed to provide adequate reasons, specifically in failing to account for the
preliminary finding of arbitrary treatment;
[77]
Nazar
Ahmad, Hamidu Ameen, Pamela Cheung, Harjinder Dhesy, Deborah Haire, Andy Henderson,
Yulia Hidijat, Fanny Jang, Julian Lebofsky, Anna Michieli, Nelly Ng, Indrajit Roy,
Susan Tierney, Chelliah Venogopal, Salim Virji, Frank Wong, Helen Yi and
Anna Yu because they were not provided with access to the fact-finder
report;
[78]
Norine
Goodman, Richard Malone and Randy Zurin because they were not provided with
access to the Assessment Worksheet prior to the Decision Review meeting.
V. Conclusion
[79]
In
consideration of the above conclusions, this application for judicial review is
allowed in part. Due to the fact that nearly all of the Applicants succeeded
on judicial review, they shall be awarded their costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed in
part. Costs are awarded to the Applicants.
“ D.
G. Near ”
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