Date: 20110728
Docket: T-591-10
Citation: 2011 FC 951
Ottawa, Ontario, July 28,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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LAURA D'URZO
TOM STRATIGOS
ELIO VIOLO
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of three decisions made by Ms. Deborah Danis
in her capacity as a Decision Reviewer of the Canadian Revenue Agency (CRA).
The Applicants made several allegations of arbitrary treatment after they were
unsuccessful in a promotional process at the CRA. In each case the Decision
Reviewer did not find any evidence of arbitrary treatment in the selection
process. The Applicants allege that the reasons given by the Decision Reviewer
are inadequate, and that the Decision Reviewer failed to either address or
consider all of
their submitted allegations. Further, the
Applicants argue that they were denied the benefit of full disclosure prior to
the decision review meeting. For these reasons the Applicants seek judicial
review and request that the decisions by the Decision Reviewer be set aside,
and that the matter be referred back to a different Decision Reviewer to be
decided in accordance with the reasons of this Court. The Applicants also seek
their costs.
[2]
Based
on the reasons below, this application is allowed.
I. Background
A. Factual
Background
[3]
The
Applicants, Ms. D’Urzo, Mr. Violo and Mr. Stratigos, are employees of the CRA.
They entered a selection process for the position of Coordinator, Large File
Appeals. This position is classified at the AU-06 group and level. At the
time the job notice was posted in 2008, Ms. D’Urzo had been acting in the
position of an AU-06 Coordinator in Large File Appeal since May 2007, Mr. Violo
had worked as an AU-06 Large File Case Manager in an acting capacity for more
than three years and Mr. Stratigos had also been acting in the position since
May 2007.
[4]
The
selection process was divided into three stages, or tiers. In order to advance
to the next tier, and ultimately be placed into a pool of qualified candidates,
candidates needed to demonstrate that they met the threshold requirements of
the previous tier. In order to advance to tier 3, the candidates needed to
show, among other things, that they had achieved a Level 3 designation in the
competency of “Legislation, Policy and Procedures” (LPP).
[5]
A
standardized evaluation tool known as a “Portfolio of Technical Competencies”
(PoTC) was used to assess the LPP competency. The PoTC asked candidates to
describe in writing an example of a situation where he or she demonstrated the
competency in question. The PoTC had an 800-word limit. According to the job
notice, candidates who had previously been assessed as meeting the requirements
of LPP3 were permitted to submit those results for consideration in the AU-06
process.
[6]
Once
the Applicants submitted their completed PoTC’s they were independently
assessed by two Technical Competency Assessors (TCA), Judy Dakers and Mark
Salutin. Both results were calibrated to obtain a final score.
[7]
The
Applicants were screened out of the competition at this stage. The TCAs
determined that the Applicants did not meet the required Level 3 rating of the
LPP competency. As such, they did not advance to the next tier.
[8]
The
Applicants all decided to exercise their recourse options pursuant to the CRA’s
“Directive on Recourse for Assessment and Staffing”. This consisted of
“Individual Feedback”, followed by “Decision Review”.
[9]
Individual
Feedback was provided by the TCAs who had rated the LPP competency. Decision
Review was provided by Deborah Danis, who had been appointed as Decision
Reviewer by the CRA.
[10]
It
is the three decisions that she rendered with respect to each of the Applicants
that are now under review.
B. Impugned
Decision
[11]
In
each of the decisions in question, the Decision Reviewer began by outlining the
process of Decision Review. She then explained that she had carefully reviewed
the issues raised in the submissions of the Applicants as well as the TCAs’
responses to those issues. She added:
Furthermore, and as previously
shared with you, your submission was subsequently forwarded for a further
assessment by different Technical Competency Assessors. Their conclusions
corroborated the initial findings.
[12]
She
then summarized what she considered to be the issue and the evidence she
considered in coming to her conclusion. In all three decisions, under the
“issues” section the Decision Reviewer provided the same one sentence of
analysis:
I have concluded that even
though the example you provided articulates legislative references and, to some
degree, application to the event in question, you have not detailed your
analysis sufficiently nor provided a comprehensive analysis of the references
you cite throughout your narrative.
[13]
She
then went on to clarify that her role was to consider whether the employee
exercising recourse was treated in an arbitrary way. As mandated by the
“Directives on Recourse for Staffing”, she focused on the treatment of the
individual employee in the process and not on the evaluation of other
candidates. The Decision Reviewer reproduced the definition of “Arbitrary”
which the CRA defines 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. difference of treatment or denial
of normal privileges to persons because of their race, age, sex, nationality,
religion or union affiliation.
[14]
In
all three decisions, she provided the following concluding paragraph:
As a result of the fact-finding process
undertaken during this review, and in keeping with our discussion, it has been
determined that the Technical Competency Assessors were reasonable in awarding
the level they did for the competency in question. I can find no fault of the
Technical Competency Assessors in making their decision to warrant my
intervention. It is my conclusion that you were not treated in an arbitrary
manner in this selection process.
II. Issues
[15]
The
issues raised in this application are:
(a) Were the Applicants’ rights to
procedural fairness breached?
(i) Were
the reasons adequate?
(ii) Were
the Applicants’ afforded disclosure?
(b) Was the Decision at Decision
Review reasonable?
III. Standard of Review
[16]
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. […]
[17]
As
set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
SCR 190, a review on the standard of reasonableness requires consideration of
the existence of justification, transparency, and intelligibility in 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.
[18]
The
Applicants submits that the issue of adequacy of reasons and disclosure should
be reviewed on the correctness standard as they are questions of law. The
Respondent disagrees and relies on Gerus v Canada (Attorney
General),
2008 FC 1344, 337 FTR 256, to argue that the reasonableness standard should
apply to the review of questions of the type at issue in this case.
[19]
Certainly,
in Gerus, above, the Court found that the reasonableness standard
applied to the questions of fact and policy raised in that application.
However, Justice Mandamin also found that the first issue in that application
involved procedural fairness. Accordingly no assessment of a standard of
review was required because, if found, a breach of procedural fairness results
in the setting aside of the decision (at para 14). This is functionally
equivalent to reviewing questions of procedural fairness are evaluated on the
standard of correctness, as caselaw supports even in the context of CRA
staffing decisions (see Ng v Canada (Attorney General), 2008 FC 1298,
338 FTR 298 at para 28).
[20]
As
the first two issues amount to allegations that the Applicants’ rights to
procedural fairness were breached, they will be reviewed on the correctness
standard.
IV. Argument
and Analysis
A. Were
the Applicants’ Rights to Procedural Fairness Breached?
[21]
The
Applicants allege that their rights to procedural fairness were breached in two
ways. Firstly, the reasons provided by the Decision Reviewer were inadequate.
Secondly, during the process of Decision Review, all relevant documents were
not disclosed to the Applicants as per CRA policy.
[22]
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, 174 DLR (4th) 193 to
the CRA’s Decision Review process. He concluded 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).
(i) Were
the Reasons Adequate?
[23]
The
Applicants submit that the Decision Reviewer rejected the Applicants’
submissions without providing meaningful reasons. The Applicants describe the
identical conclusory paragraph as terse and lacking supporting rationale. The
Applicants argue that the decision fails to adequately explain why the
Applicants allegations were rejected and does not permit effective review by
this Court. The Applicants consider the reasons to be merely conclusions that
do not demonstrate that the Decision Reviewer grappled and resolved the issues
presented by the Applicants’ submissions.
[24]
Furthermore,
the Applicants allege that the Decision Reviewer failed to address four
allegations in her reasons: 1) the portfolio word limit was unfair; 2) the TCAs
did not have the required expertise; 3) the CRA failed to take into account
that the Applicants had been successfully performing in the position in
question for a lengthy period of time; and 5) Mr. Violo was not given credit
for previously obtaining a Level 4 on the LPP competency.
[25]
The
Respondent takes the position that when evaluating the adequacy of reasons,
courts should recognize “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, at para 44). While para
9.2.6. of the Directive on Recourse requires the decision-maker to “make the
final decision in writing and ensure that it is recorded in the staffing file
or the employee’s competency profile,” it does not specifically mandate that detailed
reasons be provided. The Directive on Recourse also provides, at para 9.2.11,
that “the written decision is not a record of everything that was said or done
during the review, but rather a record of the findings.”
[26]
The
Federal Court of Appeal (FCA) recently discussed adequacy of reasons in Vancouver
International Airport Authority v Public Service, 2010 FCA 158, 9 Admin LR
(5th) 79. In the context of administrative law, the FCA had held that reasons
“must provide an assurance to the parties that their submissions have been
considered, enable the reviewing court to conduct a meaningful review, and be
transparent so that regulatees can receive guidance…” (at para 14).
Taking this into account, the FCA determined that the adequacy of a
decision-maker’s reasons must be evaluated with four fundamental purposes in
mind. These were listed at para 16:
(a) The substantive
purpose. At least in a minimal way, the substance of the decision must be
understood, along with why the administrative decision-maker ruled in the way
that it did.
(b) The procedural purpose. The
parties must be able to decide whether or not to invoke their rights to have
the decision reviewed by a supervising court. This is an aspect of procedural
fairness in administrative law. If the bases underlying the decision are
withheld, a party cannot assess whether the bases give rise to a ground for
review.
(c) The accountability purpose.
There must be enough information about the decision and its bases so that the
supervising court can assess, meaningfully, whether the decision-maker met
minimum standards of legality. This role of supervising courts is an important
aspect of the rule of law and must be respected: Crevier v. Attorney General
of Quebec, [1981] 2 S.C.R. 220; Dunsmuir, supra at paragraphs
27 to 31. In cases where the standard of review is reasonableness, the
supervising court must assess "whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law": Dunsmuir, supra at paragraph 47. If the
supervising court has been prevented from assessing this because too little
information has been provided, the reasons are inadequate: see, e.g., Canadian
Association of Broadcasters, supra at paragraph 11.
(d) The "justification,
transparency and intelligibility" purpose: Dunsmuir, supra
at paragraph 47. This purpose overlaps, to some extent, with the substantive
purpose. Justification and intelligibility are present when a basis for a
decision has been given, and the basis is understandable, with some discernable
rationality and logic. Transparency speaks to the ability of observers to
scrutinize and understand what an administrative decision-maker has decided and
why […]
[27]
The
FCA went on to list other important principles to be kept in mind when
evaluating the adequacy of reasons. Most pertinent in this case, is the
relevancy of extraneous materials. The FCA remarked that notes in the
decision-maker’s file and other matters in the record may serve to clarify or
amplify the reasons, and in some cases extraneous material might express the
basis for the decision. Further, a court ruling on adequacy of reasons should
not frustrate procedures set out by specialized decision-makers empowered by
parliament in order to achieve timely, cost-effective justice.
[28]
Applying
these principles to the present matter, I find that the reasons provided in
each of the three cases do not live up to the standard. The reasons are
inadequate.
[29]
It
is not due to brevity that the reasons fail to meet the minimum requirements. The
reasons are set out in an organized fashion and describe the Decision Review
Process, but the analysis conducted by the Decision Reviewer is confined to a
sentence in which she expresses that the Applicants’ provided insufficient analysis
in their PoTCs. This decision is identical in all three cases – “I have
concluded that even though the example provided articulates legislative
references, and to some degree, application to the event in question, you have
not detailed your analysis sufficiently nor provided a comprehensive analysis
of the references you cite throughout your narrative” She then goes on to find
that the TCAs were reasonable in awarding the scores that they
did. This last paragraph is also identical
in all three cases:
As a result of the fact-finding process
undertaken during this review, and in keeping with our discussion, it has been
determined that the Technical Competency Assessors were reasonable in awarding
the level they did for the competency in question. I can find no fault of the
Technical Competency Assessors in making their decision to warrant my intervention.
It is my conclusion that you were not treated in an arbitrary manner in this
selection process.
[30]
Keeping
in mind that the decision review process is meant to be efficient and timely,
and the Decision Reviewer is not required to produce detailed reasons, I still
find that the decisions rendered in these cases fall short of the mark. The
analysis is generic, and akin to a rubber stamp. There is nothing to suggest
that the allegations of the Applicants were seriously considered before
reaching the stated conclusion. For instance, Ms. D’Urzo argued that the TCAs
arbitrarily focused their marking only on the “legislation” aspect of the LPP
competency, thereby giving insufficient weight to factors relation to “policies
and procedures”. Similarly, Mr. Stratigos argued that the TCAs arbitrarily
concluded that the sole use of policies and procedures is to clarify
legislation. There is nothing to tell the Applicants why these allegations
were rejected, seemingly out of hand.
[31]
I
have reviewed the consolidated Certified Tribunal Record (CTR). Instead of
clarifying the reasons, or expressing the basis for the decision, the “Decision
Review Form: Request for Consultation with SACS” raises further concerns. In
each case, the Decision Reviewer listed “arbitrary assessment” as her
preliminary decision. Her notes reveal that she found some of the TCAs
worksheet comments to be questionable. For example, with reference to Ms.
D’Urzo the Decision Reviewer found:
• Some Assessment
Worksheet commentary unclear
• The primary
observation that the narrative is overly brief is not well-founded
• TCA statement,
that if the candidate qualified they would be placed in the job given their
experience, is of concern and suggests the possibility of bias in the
assessment
[32]
From
my reading, it seems that she requested a second assessment of each Applicant’s
submission “with a view to determining the level achieved” (for example,
Applicants’ Record pg 304). There
are several e-mails from November 2009 in the CTR in which the Decision Reviewer
expresses that the requests for decision review may represent “arbitrary
decisions” (see for example, Applicants’ Record pg 291).
[33]
In
March 2010, it appears, the Applicants’ PoTCs were evaluated by two different TCAs.
The new TCAs confirmed that the Applicants failed to meet the Level 3 requirements
for the LPP competency, echoing the reasoning of the original TCAs. This
might explain why, on March 17, 2010 the Decision Reviewer came to the
conclusion in all three cases that the Applicants were not treated
arbitrarily. This might explain the Decision Reviewer’s change of heart, but
it might not. I am only guessing. And guessing is not good enough.
[34]
There
is nothing to indicate how the Decision Reviewer resolved both the issues
presented by the Applicants and the issues she uncovered by way of her own
review (and detailed in her handwritten notes) to come to the conclusion that
the TCAs were reasonable in awarding the scores they awarded. While I am
cognizant of the position in the Directive, that the written reasons are not a
record of everything that was done, I share the view of the Applicants that a
record of the findings must be more than a bald statement of conclusion. This
is especially so when the conclusion is so disparate from the rest of the
contents of the CTR.
[35]
Additionally,
several of the allegations of the Applicants are invisible in the reasons.
While the Decision Reviewer cannot be required to thoroughly respond to
allegations that are clearly baseless or outside of her jurisdiction on
Decision Review, in my view she is required to explain that they are outside of
her jurisdiction to permit effective review of the decision For example, the
word limit was the same for all candidates. The Decision Reviewer is not
empowered to undermine set policies of the CRA or impugn a selection process as
a whole, however, if the Decision Reviewer considered such issues to be outside
her jurisdiction, it would be helpful if that reasoning was reflected in the
decisions. The Applicants must know that their submissions were considered,
and this Court must be able to conduct a meaningful review. I am unable to do
so, and so would allow the judicial review on this ground alone.
(i) Was
there Sufficient Disclosure?
[36]
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. 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).
[37]
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.
[38]
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’s policy on mandatory disclosure is fairly broad.
Furthermore, an e-mail query sent on behalf of the Decision Reviewer contained
in the CTR reveals that it is internal policy to allow candidates to view the Assessment
Worksheets during recourse in the presence of an authorized person, i.e. the TCA
“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…” (CTR pg 76).
[39]
Although
not argued by the Applicants, the doctrine of legitimate expectations
essentially provides that if an administrative body makes promises regarding
the procedure it follows, it will be unfair if the body does not follow that
expected procedure in a given case (Baker, above, at para 26). In
the present matter, the Applicants should have been able to review 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).
[40]
I
am not certain from the record whether the Applicants had meaningful access to
the contents of the worksheets prior to Decision Review or not. The Respondent
claims the contents of these worksheets were discussed with the Applicants at
Individual Feedback, while the Applicants deposed that they were never provided
with the worksheets either during Individual Feedback or Decision Review. (Mr.
Violo was able to view the Assessment Worksheet at the Decision Review meeting,
but only when the meeting commenced. As such, he argues that he did not have
the opportunity to prepare his arguments). 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. This application could be sent back on
this ground as well.
B. Was
the Decision Reasonable (Were all Allegations Considered)?
[41]
For
the most part, a consideration of whether all of the Applicants’ allegations
were considered is subsumed in the adequacy of reasons analysis. The allegedly
ignored allegations are, for the most part, blatantly outside the scope of
Decision Review. The Directive instructs that Decision Review focuses on how
the individual was treated, and is not meant as a platform to criticize the
selection process or treatment of other employees (see Directive on Recourse,
para 4.1, Respondent’s Record pg 9). The 800-word limit is clearly not
arbitrary as it was applied to everyone in the process. If there is an
institutional bias in favour of people coming from audit as opposed to appeals,
Decision Review is not the proper arena in which to raise this issue. The
Decision Reviewer is powerless to address such an allegation. The allegation
that the TCAs were not qualified to assess the Applicants is similarly out of
place in recourse. The TCAs were accredited by the CRA and evaluated all of
the PoTCs. There may be a legitimate basis for criticism with regards to the
expertise required by the CRA to become a TCA. That, in the Applicants’
submission, an AU-02 assesses competencies required for a future AU-06 does at
first glance appear suspicious. In any event, decision review is not the place
to level these criticisms. That the Decision Reviewer suspected potential bias
after having a phone conversation with one of the TCAs during fact-finding is
something, however, that ought to be resolved during Decision Review. I cannot
tell, based on a review of the reasons, how or why this concern seemed to
disappear. The Applicants also argued that the Decision Reviewer should have
considered that Ms. D’Urzo and Mr. Violo had been successfully
performing in the same or a similar position to that that was the subject of
the competition for a lengthy period of time. This is a baseless argument
because there is nothing to support it. If acting in an AU-06 position were
sufficient to show that a candidate meets the requirements to be placed in the
qualified AU-06 pool, the CRA would not be running a competition. Although it
might seem strange to non-career bureaucrats to run extensive, tiered
competitions to ascertain whether employees are qualified to fill a position
they have been being paid to “act” in for years, this is the nature of federal
government staffing. This may suggest that the PoTCs were marked unreasonably,
but the Decision Reviewer clearly, based on her notes, attempted to investigate
this allegation. Lastly, Mr. Violo submits that he was not given credit for
previously achieving Level 4 on the LPP. The staffing notice does say that the
results of standardized assessments are portable. However, there is no
evidence that he ever submitted those results for consideration.
[42]
The
Respondent submits that in effect, the Applicants only disagree with the
Respondent’s interpretation of the marking criteria, their interpretation of
which falls within the range of defensible outcomes. With respect, I must
disagree with this position. The Decision Reviewer’s notes reveal that she
found some of the worksheet commentary with respect to the assessment of the
Applicants PoTC to be questionable and not well-founded. It is impossible for
me on judicial review to assess whether the Decision Reviewer’s subsequent
change of mind falls within the range of defensible outcomes due to reasons which
I find to be inadequate.
[43]
While
reasonableness is a deferential standard, and the expertise of the TCAs and the
Decision Reviewer should be deferred to with respect to the evaluation of the
substantive matter in question, the Applicants have the right to know that
their allegations were fully considered and resolved by the Decision Reviewer.
If the Respondent’s submissions are upheld on judicial review, they have the
effect of shielding the recourse process from any kind of meaningful review by
this Court. The decisions are neither transparent, justified, nor
intelligible, and so they cannot be said to be reasonable.
V. Conclusion
[44]
In
consideration of the above conclusions, this application for judicial review is
allowed; with costs to the Applicants.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed;
with costs to the Applicants.
“ D.
G. Near ”
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