Date: 20110819
Dockets:
T‑493‑10
T‑494‑10
T‑503‑10
Citation: 2011 FC 1010
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, August 19, 2011
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
|
|
DUNG TRAN
|
|
|
|
Applicant
|
|
and
|
|
|
CANADA REVENUE AGENCY
|
|
|
|
Respondent
|
|
|
|
|
REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
Each of the three files
before the Court is an application for judicial review by the applicant, Dung
Tran, against similar decisions by the chairs of selection boards of the Canada
Revenue Agency (the Agency), rejecting, on the same grounds, her applications
for various positions. The grounds were that she did not have [translation] “recent and significant
experience in auditing at the AU‑04 level or above, that is, experience normally
acquired over the course of 18 months within the last 5 years”.
II. Overview
[2]
The applicant, Dung
Tran, has been employed by the Agency since 1996; she was hired by the Department
of National Revenue (the Department) at its Tax Services Office (TSO) in
Québec, the location of her substantive position. Since 2006, she has
been working at the Agency’s National Headquarters in an acting AU‑04
position as senior planning and analysis officer. In January 2010, in
her substantive position in Québec, Ms. Tran had been at the AU‑03
level – Tax Auditing since January 22, 2007.
[3]
Before
joining the TSO in Québec, she had worked for two years as a tax professional
for an accounting firm, which enabled her to become a member of the Quebec
provincial order of chartered accountants.
[4]
The Agency
was created by an Act of Parliament in 1999. It has taken over the Department’s
activities. According to section 53 of
the Canada Customs and Revenue Agency Act, now the Canada Revenue Agency
Act (the Act), the Agency has the exclusive right and authority to appoint
any employees it considers necessary for the proper conduct of its business.
Section 54 of the Act provides that the Agency
must develop a Staffing Program (the Program) governing, among other things,
the appointment of, and recourses for, employees.
[5]
The Agency’s
Staffing Program states that a selection process is one of the primary
mechanisms the Agency uses to promote and appoint its employees. This selection
process is the method by which applicants can express their interest in a
vacant position and then be assessed. If they qualify in the inventory, they
may then be considered for, and appointed to, this position.
[6]
On January 10,
2010, as part of the selection process, Ms. Tran applied for three
positions within the Agency at TSOs in the province of Quebec at the AU‑04
level, namely:
First
position: Senior International Auditor
Second
position: Senior Tax Avoidance Auditor
Third
position: Senior Large File Auditor.
[7]
In accordance
with the Directive on Recourse for Assessment and Staffing (the Directive), a
selection board was constituted for each selection process.
[8]
The
Directive provides that selection processes consist of three main steps:
(1)
Pre‑requisite
stage:
assessment of applications against the pre‑requisites stated on the
selection process poster;
(2)
Assessment
stage:
assessment of applications against the qualifications and skills required by
the selection process
(3)
Placement
stage:
placement of one or more qualified persons on the basis of one or several
placement criteria stated on the selection process poster.
[9]
At the pre‑requisite
stage, a board may preselect or screen out an applicant by taking into account
the pre‑requisites required by the selection process, including the
following:
(1)
application
deadline
(2)
area of
selection
(3)
language
requirements
(4)
studies/level
of education
(5)
professional
certification
(6)
experience
sought
[10]
On
January 25, 26 and 28, 2010, the selection boards decided, at the
qualification stage (pre‑requisite review), that Ms. Tran did not
have the required experience, thus screening her out as a candidate for the three
positions for which she applied. On February 19, 2010, in
accordance with the Directive on Recourse, Ms. Tran filed a request with
each selection board chair for reconsideration (individual feedback on the
board’s decision). In early March 2010,
each chair refused Ms. Tran’s application for reconsideration.
[11]
Following the refusals
to reconsider, the applicant filed the following three applications for
judicial review against these decisions:
(1)
T‑493‑10:
the decision of Chair Michel Adam, dated March 1, 2010, regarding the
position of Senior International Auditor,
(2)
T‑494‑10: the
decision of Chair Mario Trembay, dated March 1, 2010, regarding the position
of Senior Tax Avoidance Auditor, and
(3)
T‑503‑10: the
decision of Chair Trassi, dated March 3, 2010, regarding the position of
Senior Auditor, Large Files.
[12]
To better understand
the impugned decisions, it is necessary to elaborate on the experience required
and the description of each position.
[13]
This information appears
in the relevant Notices of Job Opportunity for each position.
(1) T‑493‑10 – Auditing –
International Tax
[14]
The job description is
as follows:
[translation]
This position
involves conducting international audits of taxpayers assigned the highest
international taxation complexity ratings in respect of all international
commercial and financial transactions, while ascertaining compliance with
Canadian tax law.
[Emphasis added]
[15]
The experience required
is the following:
[translation]
Recent and
significant experience in international auditing in carrying out tasks assigned
to a position at the AU‑03 level (equivalent) or above.
Recent and
significant experience is defined as experience normally acquired over the
course of 18 months within the last 5 years.
To demonstrate
your significant experience in international auditing, you must submit a two‑page
document showing clearly your contributions and achievements and return it by e‑mail to Michel Adam by no later than the
closing date for this notice.
For each of your
contributions and/or achievements, please provide the following information:
·
Length of time (start and end dates)
·
Estimated number of hours
·
Description of work done
·
Tax topics addressed, sections covered, etc.
·
Person(s) able to confirm the information
provided (name and telephone number)
For greater
specificity, experience in international taxation may have been acquired outside
the international taxation field.
To assess the 18‑month
criterion, members of the board will generally use a basis of 1,800 consecutive
hours devoted to the activities.
The purpose of
this document is to satisfy the pre‑requisite for experience.
[Emphasis added]
(2) T‑494‑10 – Auditing – Tax
Evasion
[16]
The position is
described as follows:
[translation]
This position
involves conducting audits at the highest level of complexity to uncover
aggressive tax planning schemes and thus ensure
compliance with the statutes enforced by the Canada Revenue Agency for the
entire Canadian population.
[Emphasis added]
[17]
The requirements for
experience are identical to those in the T‑493‑10 – Auditing –
International Tax file, including
the criterion stating that [translation]
“[f]or greater specificity, experience in aggressive tax planning may have
been acquired outside the aggressive tax planning field” and the
requirement to submit a two‑page document showing the experience
acquired.
(3) T‑503‑10 – Auditing –
Large Files
[18]
The position and tasks
are the following:
[translation]
This position
involves conducting complete analyses and reviews of very complex and delicate
files of businesses that use very complicated, industry‑specific automated
accounting systems.
[19]
The experience required
is described as follows:
[translation]
The experience requirements outlined in this job notice relate to
all jobs advertised in this job notice unless specifically indicated otherwise.
Recent and
significant experience in the Audit Division in carrying out tasks assigned to
a position at the AU‑03 level (equivalent) or above.
Recent and
significant experience is defined as experience normally acquired over the
course of 18 months within the last 5 years.
III. The
impugned decisions
(1) T‑493‑10
[20]
At page 46 of the
Court record is a selection sheet for Ms. Tran, dated January 26,
2010, on which it is stated that Ms. Tran does not meet the experience
requirement; the comment is [translation]
“experience in international auditing not demonstrated”. In his affidavit, Mr. Adam
states that, on January 26, 2010, the board decided unanimously that
Ms. Tran did not have the experience required. Not until February 12,
2010, was she informed of that decision, in the following words:
[translation]
As stated in the
notice of job opportunity, experience is one of the pre‑requisites for
this position. A review of your application shows that you lack the following required
experience: Recent and significant experience in international auditing in
carrying out tasks assigned to a position at the AU‑03 level (equivalent)
or above. Recent and significant experience is defined as experience normally
acquired over the course of 18 months within the last 5 years. We
therefore regret to inform you that your application will not be given further
consideration in this selection process.
If you have any
questions or wish to obtain additional information, please contact me
. . . .
[21]
Further to the feedback
request and a telephone conversation between the applicant and Mr. Adam on
March 1, 2010, Mr. Adam informed Ms. Tran that the board would
maintain its decision.
(2) T‑494‑10
[22]
As in file T‑493‑10,
the Court record in file T‑494‑10, at page 1, contains a
selection sheet for the applicant, on which the following remark is written
below the requirement for experience in tax evasion auditing: [translation] “no AU‑03
auditing experience, only reviews coding, did not have to obtain information
and handle the case”.
[23]
Ms. Tran was not
informed of the decision until February 12, 2010. The wording is
essentially the same as in T‑493‑10.
[24]
On March 1, 2010,
as agreed, Ms. Tran and Mr. Tremblay discussed her request for
individual feedback. That same day, Mr. Tremblay wrote the following notes
in the file:
[translation]
Received call
from Dung. I asked her if she was in Quebec and if she wanted to do the
feedback in person. She preferred to do it by phone so she could have access to
her documents and computer. She wanted to know who the other members of the
board are. I answered her. I explained how we went about the pre‑requisite
review, and that the pre‑requisites were set by the AD [assistant
directors], Audit. We want to have people with experience in the
specialty area so they can take on the work quickly. I told her that we
do not consider her work to be auditing any more than we would that of an
appeals officer. The statement on the poster that the work could have
been done elsewhere is aimed at including, for example, auditors who did the
avoidance work on their own (on a basic file, for example) with advice from
an avoidance officer. In her case, we do not consider that she is doing
auditing work.
She stated that
her contract with National Headquarters indicates that she will be accepted
into the processes. I told her that no one can guarantee that. Who can
determine ahead of time what the pre‑requisites for a given process will
be.
I also spoke to
her, at the end, about the wording of her request, which is a bit offensive. In
my view, we are three board members who respected all of the values of the
Agency, and it shows a lack of respect to write her request the way she did.
I told her that it is a bit offensive and she said that it’s even more offensive
for her to be rejected. I told her that I will send her an email
(approx. 20 min. max.).
[Emphasis added]
[25]
On March 1, 2010,
Mr. Tremblay sent an email confirming that the board’s decision would be
maintained.
(3) T‑503‑10
[26]
The first page of the
Court record shows that, on January 28, 2010, a selection sheet was
completed regarding Ms. Tran’s application for the position of Large File
Auditor. The comment below the experience requirement reads as follows:
[translation]
AU‑03 since
22‑01‑2007 at 1206‑443. According to Mario Tremblay of
Québec, “does not have the experience required, has never done AU‑03
auditing, reviewing coding different from auditing.
[27]
This decision was
conveyed to the applicant on February 12, 2010, written in terms echoing
those of the other two decisions she received. She requested individual feedback.
A telephone meeting was held on March 1, 2010. On March 3, 2010, she
was notified that the board’s decision would be maintained.
IV. Grounds raised by the applicant and in her affidavit
[28]
In each application for
judicial review, the applicant is raising the same grounds in support of her
contentions that she was treated arbitrarily at the pre‑requisite
review stage and that the decisions were unreasonably and arbitrarily
maintained at the individual feedback stage:
(1)
The boards selected
raised a reasonable apprehension of bias in respect of the applicant;
(2)
Both at the pre‑requisite
review stage and the individual feedback stage, the board members could not
have been unaware that the applicant had the recent and significant experience
required for each position. By finding otherwise, they made unreasonable errors
in fact or law;
(3)
The decision of each
board fails to respect the Agency’s commitment to the applicant that she could
enter any selection process for which she would have been eligible if not for
her acting assignment.
[29]
In her affidavit in
support of the three applications for judicial review, on which she was not
cross‑examined, Ms. Tran states that,
(1)
For the positions of Senior
International Auditor and Senior Tax Avoidance Auditor, she filed the required
two‑page documents to show that she had the required experience (see
Exhibit “J” attached in a bundle in support of her affidavit); and
(2)
For the third position,
that of Senior Large File Auditor, there was no similar requirement.
[30]
According to
Ms. Tran, Exhibit “J” and the other information required were amply sufficient
to fulfill the demonstration requirements for each of the three positions at
the pre‑requisite review stage. I note that both documents at
Exhibit “J” contain the following notice to the reader: [translation] “if you need further
information, please contact me or contact my manager, David Clarke, at the
telephone number provided.
[31]
Ms. Tran notes
that, although she did not know the reason, the file processed by
Mr. Trassi contained no note regarding the individual feedback.
[32]
In file T‑493‑10,
she stated the following:
(1)
The board clearly
ignored the document at Exhibit “J” in that it provided [translation] “a clear demonstration of her recent and
significant experience in international auditing; and
(2)
[translation] “Although my manager [David
Clarke] informed Mr. Adam of the fact that the task description sheet
he intended to use for assessing my application was not up to date and that the
tasks described did not correspond to the work done, [translation] ‘it seems that this
document dating back over 15 years was submitted to the board without
reservation’. According to Ms. Tran, if her sheet [translation] ‘had been up to date,
this task description, which still does not exist, would have confirmed all of
the experience described in her two‑page document [translation] “at Exhibit ‘J’”.
[33]
Referring to the notes
by Mr. Adam (Exhibit “M” of her affidavit), she listed the inaccurate
conclusions they contain, reached hastily on the basis of outdated information,
among other things that she (1) is not involved in conducting analyses and
making recommendations and decisions for ITA enforcement and, in particular,
for international transactions, since part of her work involves auditing the
results of files containing adjustments related to international transactions; and
(2) does not do reassessments; furthermore, (3) the board failed to consider her
auditing experience acquired outside the field of international taxation.
[34]
What is more, the board
did not contact Mr. Clarke, who was able to confirm the contents of the
two pages (Exhibit “J”), and the selection board chair only contacted her
supervisor when handling her request for reconsideration.
[35]
Regarding the
individual feedback session, Ms. Tran states that the feedback was without
merit, as follows:
(1)
On February 22,
2010, Mr. Adam, chair
of the board, consulted a person who was not a member of the board to
determine whether Ms. Tran had been treated arbitrarily and, following
this conversation, made his decision to deny her request for reconsideration on
the basis of irrelevant grounds, among others, [translation] “that she could apply for positions within the
Agency that might not be available to auditors in the Quebec region and that
the experience she was gaining as an AU‑04 would give her an advantage in
the long run”;
(2)
During the feedback
session, Mr. Adam [translation]
“told me that he did not have detailed knowledge of the nature of my duties
and listed the criteria that had been considered by the board at the pre‑requisite
review stage, including having been in contact with taxpayers and having, in
the course of an audit, examined certain documents”. Ms. Tran states that
she told Mr. Adam that those factors were not set out in the notice of job
opportunity or the statement of requirements. According to Ms. Tran,
Mr. Adam [translation]
“simply referred me to the mandate he had allegedly been given by the assistant
directors”.
[36]
At paragraphs 33
and 34 of her affidavit, Ms. Tran addresses file T‑494‑10.
She challenges the decision of the Tremblay board regarding the position of
Senior Tax Avoidance Auditor. She states that the chair, Mr. Tremblay,
gave her verbal confirmation that her statement of experience at
Exhibit “J” had not been considered [translation] “and to justify this omission by the board, he
explained to me, during the individual feedback session, that the experience as
AU‑03 had to have been acquired in the aggressive tax planning division
and that the statement in the notice of job opportunity and the statement
of requirements that the experience could have been acquired elsewhere was
in fact addressed to persons who worked in the international audit division who
provided advice on tax avoidance. The applicant states that
Mr. Tremblay’s interpretations in this regard are off the cuff and lacking
in transparency and objectivity. She adds that if the board had doubts as to
the precise nature of her experience, it had a duty to accept her application
for consideration at the assessment stage. In addition, the applicant states
that the board did not contact the reference person [David Clarke] who
was able to confirm the substance of her statement of experience in tax
avoidance auditing.
[37]
On the matter of
individual feedback, the applicant contends that Mr. Tremblay’s decision
was without merit for the following reasons:
(1)
He lacked the necessary
objectivity because he was offended by her statements;
(2)
The grounds set out in
his notes (Exhibit “K”) are not consistent with the pre‑requisite
review stage.
[38]
Paragraphs 35 and
36 of Ms. Tran’s affidavit pertain to file T‑503‑10
contemplating her application for the position of Large File Auditor. She
states that it is clear that the board chaired by Mr. Trassi acted
arbitrarily at the pre‑requisite stage.
[39]
She uses the following
elements to back up her contention:
(1)
The job opportunity
documents state that the recent and significant experience sought is in the
Audit Division of the TSOs located in Montréal, Laval and Montérégie.
(2)
Her substantive
position over the last 13 years has been in the Audit Division of the TSO
in Québec, but she was not accepted.
(3)
In fact, some persons
who work in the Audit Division do not do auditing but would be eligible. The
board members could not ignore that her duties are at least equivalent to those
given to her co‑workers in this Division, as shown by the comparative
table at Exhibit “P” filed in support of her affidavit.
(4)
When she accepted the
position at the Agency’s National Headquarters, she signed a contract (her
Exhibit “Q”) which stipulates that she could enter any selection process
or have her application considered for any position for which she would have
otherwise been eligible if not for this assignment, which means that the board
had to consider her experience in the Audit Division or elsewhere, which it
failed to do.
[40]
The individual feedback
she received from Mr. Trassi was without merit because it (1) was
predicated on the opinion of Mario Tremblay, who was not a member of the board;
and (2) it was never completed by Mr. Trassi, thus depriving her of the
opportunity to present all of her arguments.
[41]
She concluded her
affidavit with more general considerations, including the following :
(1)
The fact that she held
a position in which she verified the results of her co‑workers’ audits
and that her revisions could have an impact on the assessment of their work.
She contends that her interventions over the years had upset her co‑workers,
including members of the board.
(2)
Her performance at the
Agency had been assessed as exceeding expectations; this can be seen from the
assessment reports attached to her Exhibit “R”, which indicate that she
(1) is an excellent auditor with a good investigative sense; (2) provides
assistance to auditors; and (3) has carried out audits that resulted in tax
adjustments.
V. Affidavits of the Agency
[42]
Each board chair in
this case filed an affidavit, on which he was not cross‑examined.
(1) Affidavit of Chair Adam
[43]
The affidavit of Chair
Adam may be summarized as follows with regard to the board’s decision:
(1)
The experience required
was in carrying out the tasks assigned to the International Auditing position.
(2)
The candidate had to
demonstrate that he or she had experience.
(3)
The experience in
international auditing was defined as the experience normally acquired during
a tax audit of international transactions in taxpayer files; this definition is
taken in its usual sense and known by all TSO auditors in Quebec.
(4)
The other board members
were AU‑04 auditors.
(5)
Upon reading Ms. Tran’s
two‑page document, the board found that Ms. Tran had not
demonstrated that she had experience in the field of international auditing,
for the following reasons:
(a) Her substantive position was AU‑03
– Tax Auditor, but she had never performed the functions of this position,
since she was on acting appointment;
(b) She had never examined facts and
documents related to audit files . . . ;
(c) She had discussions with other
employees at National Headquarters about sections of the ITA related to
international auditing; and
(d) She listed for the board a series of sections
of the ITA, tax agreements and policies related to this type of auditing which
could have been submitted by anyone from courses or other sources.
(6)
She reviewed coding (assessed
tax results) in audit files but, at that point, the audit had already been
done.
(7)
The board was unable to
find enough elements to establish the relevant experience for acceptance at the
pre‑requisite stage.
[44]
Chair Adam states that
candidates had to demonstrate their experience clearly and that, at the pre‑requisite
stage, the selection board did not contact the resource persons of any
candidate. However, Chair Adam states that [translation]
“of his own accord, he decided to contact David Clarke for a description of
the tasks for her current position, and that, on February 5, 2010, [translation] ‘I revised the
description of tasks I had received from David Clarke because it was not up to
date’. At paragraph 22 of his affidavit, he states that it contained
nothing to change the board’s decision.
[45]
Regarding the
feedback, Chair Adam states
that
(1)
After the feedback
request was made, he contacted David Clarke on February 19, 2010, to check
Ms. Tran’s tasks, but the additional information provided by
Mr. Clarke [translation]
“did not show that she had the required experience in performing tasks assigned
to level AU‑03 or above”.
(2)
He contacted the
Agency’s resourcing advisor in charge of the process [translation] “for some advice further to the feedback request
and that, from the discussion, it became clear that we had considered her
application in the same way as those of the other applicants. We found that
Ms. Tran has AU‑04 level experience in planning and statistics”.
(3)
On March 1, 2010,
he had a telephone discussion with Ms. Tran, during which she brought up
her agreement with the Agency. He notes that Ms. Tran’s application had
been accepted.
(2) Affidavit of Mario Tremblay
[46]
As stated above, Mario
Tremblay was Chair of the Selection Board for the position of Senior Tax
Avoidance Auditor at the AU‑04 level in the Audit Division.
[47]
Since 2005, he has been the manager of the Large
Business Audit Division, the Aggressive Tax Planning Division and the International
Audit Division.
[48]
I have summarized the
important points of his affidavit:
(1)
The experience criteria
were applied uniformly to all candidates in the selection process. The
selection board members examined in detail the following documents for all of
the candidates at the pre‑requisite stage: notices of job opportunity;
job descriptions; analysis of individuals’ employment contracts according
to our human resources management systems; candidates’ electronic applications;
and the two‑page letter submitted by the candidates (paragraph 9).
(2)
At paragraph 10 of
his affidavit, he reiterates that the board had determined that Ms. Tran
did not have the required experience because she did not have recent and
significant experience in aggressive tax planning involving the tasks assigned
to this position at the AU‑03 (equivalent) level or above.
(3)
On March 1, 2010,
he discussed Ms. Tran’s request for individual feedback with her. He explained
to her that her work as [translation]
“senior planning, resources and analysis officer over the past
four years was not auditing work and that she therefore did not meet the
experience criteria for the selection process.
(4)
He stated that, as a manager
in the Aggressive Tax Planning Division, he was very familiar with the work
done in this division and the tasks performed by employees at all levels of the
division. This statement also applies to two other members of the selection
board, since they are both team leaders. As an example of the type of experience
sought by means of the selection process, he attached as Exhibit “B” a
copy of the principal activities corresponding to an AU‑03 level position
in this division.
[49]
Paragraphs 19, 20
and 21 of his affidavit are of fundamental importance. I have reproduced them
below.
[translation]
19. In her case, the applicant has no significant or recent experience
in aggressive tax planning. Furthermore, in the last four years, she has
done no tax auditing work. So that the applicant’s tasks and
responsibilities in her current position may be understood, I am
attaching copies of the principal activities for Ms. Tran’s AU‑04 substantive
position (senior planning, resources and analysis officer) as Exhibit “C”
to this affidavit.
20. Before the
applicant began working as senior planning, resources and analysis officer,
she worked at the AU‑02 level. In other words, before being
transferred to the position of senior planning, resources and analysis officer,
she could not have obtained experience at the AU‑03 level or above
with regard to aggressive tax planning.
21. It should be
noted that Ms. Tran’s substantive position is at the AU‑03 level as tax
auditor. Ms. Tran was appointed to her substantive position in
April 2008. Before her appointment, Ms. Tran’s substantive
position was at the AU‑02 level. That said, Ms. Tran had never
carried out tasks assigned to a position at the AU‑03 level or above in
aggressive tax planning. For the last four years, Ms. Tran has been
working at National Headquarters in an AU‑04 level acting position as
“senior planning, resources and analysis officer”. This position is in no
way related to either aggressive tax planning or tax auditing.
[Emphasis added]
[50]
Regarding
Ms. Tran’s lateral transfer contract, Mr. Tremblay is of the opinion
that this contract [translation]
“does not grant her an exemption from the experience criteria”.
(3) Affidavit of Jack Trassi
[51]
As stated above,
Mr. Trassi was Chair of the Selection Board for the position of Senior Large
File Auditor. Since 2008, he has been the Large File Case Manager at the TSO in
Montréal. His affidavit is written in English.
[52]
His candidate selection
sheet for Ms. Tran is dated January 28, 2010. He wrote the following
comments under the experience requirement:
[translation]
AU‑03 since
22‑01‑2007 at 1206‑443. According to Mario Tremblay of
Québec, does not have the experience required, has never done AU‑03
auditing, reviewing coding different from auditing.
[53]
The sheet also
indicates that she has been screened out and that the decision is [translation] “to be discussed by
management: Clovis Dorval notified”.
[54]
When Ms. Tran
applied for this position, she stated the following under the “experience”
heading:
[translation]
Since
January 2007, my substantive position has been AU‑03 tax auditing. My
current work as AU‑04 is related to auditing. Almost all of the cases I
work on are from large files. If you need further information, please do
not hesitate to contact me. Supervisor: David Clarke (Court record,
page 03). [Emphasis added]
[55]
At paragraph 4 of
his affidavit, Mr. Trassi wrote the following: “Although I did not
participate in the pre‑selection decision making process directly, I was
consulted on all cases in which a candidate did not meet the requirements of
the process. I did handle feedback requests with members of the selection board.”
[56]
“Her experience is in
the examination of coding which is done by auditors once the audit file has
been completed” (paragraph 8).
[57]
He acknowledges in his
affidavit that Mario Tremblay was contacted and that “he confirmed that
Mme. Tran did have experience in coding but did not have experience performing
audits at the AU‑03 level in the Audit Division”.
[58]
He states he had an
individual feedback interview on March 1. 2010. The issue of her contract
was raised. He asked for a copy which was provided the same day. He received advice
from a senior person in the Agency’s Human Resources who explained that the
contract allowed her to apply for competitions should would otherwise not be
eligible for because of the geographical selection criteria but she would still
have to demonstrate the required experience.
[59]
He concluded by stating
that the additional information provided as a result of the feedback did not
demonstrate she had the required experience and as such the decision to eliminate
her was maintained.
VI. Analysis
(a) Standard of review
[60]
Since the standards of
review were reformed by the Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, there are only two standards of
review: correctness and reasonableness. For a question bearing on the facts,
the reasonableness standard applies because the court is accorded a degree of
deference. The question of whether a candidate has the required experience is a
question of fact (Anderson v Canada (Customs and Revenue Agency), 2003
FCT 667).
[61]
I am therefore of the
opinion that the applicable standard of review is reasonableness, but with the
nuance set out by the Supreme Court in Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 (Khosa), in respect of
paragraph 18(1)(4)(d) of the Federal Courts Act (R.S.C.
1985, c. F‑7), which reads as follows:
|
Application for judicial review
18.1
. . .
Grounds of review
(4) The Federal Court may grant relief under subsection (3) if
it is satisfied that the federal board, commission or other tribunal
. . .
(d) based its decision or order on an erroneous finding
of fact that it made in a perverse or capricious manner or without regard for
the material before it;
. . .
|
Demande de contrôle judiciaire
18.1
. . .
Motifs
(4) Les mesures prévues au paragraphe (3) sont prises si la Cour
fédérale est convaincue que l’office fédéral, selon le cas :
. . .
d) a rendu une décision ou une
ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive
ou arbitraire ou sans tenir compte des éléments dont il dispose;
. . .
|
[62]
At paragraph 3 of
his reasons, Justice Binnie stated that this section provides legislative
guidance as to “the degree of deference” owed to a federal tribunal’s findings
of fact. At paragraph 46, Justice Binnie expressed the opinion that
Parliament intended such a tribunal’s findings of fact to “command a high
degree of deference”.
(b) Conclusions
[63]
For the following
reasons, each of the applications for judicial review must be allowed.
[64]
The applicant had the
burden of showing that she met the pre‑requisite of having recent and significant
experience in a position at the AU‑03 level or above for each of the
three positions for which she applied.
[65]
For the positions of Senior
International Auditor and Senior Tax Avoidance Auditor, the applicant provided
a two‑page document describing the tasks she had performed and the
professional experience she had acquired to make her eligible to apply. For
example, for the tax avoidance position (Court record, page 101),
Ms. Tran wrote that, in her acting position, she spent at least one third
of her time analyzing various subjects related to tax avoidance and that she was
the designated resource person for all Quebec region files. Regarding the position
of Senior International Auditor, the Court record is similar (affidavit of
Michel Adam, Exhibit “B”).
[66]
In the case of the
position of Senior Large File Auditor, a two‑page document was not required.
However, the applicant had indicated to Mr. Trassi that her current work
at the AU‑04 level was related to auditing.
[67]
In each case, at the
time of the individual feedback session, it was important for the selection
boards and each chair to have an accurate picture of the tasks performed by
Ms. Tran in her current position at National Headquarters, which she had
held since 2006. The importance of this knowledge arises from the fact that the
fundamental idea she was conveying to the selection boards and their chairs was
that the tasks she was currently performing were related to auditing
and, as such, contributed to the required experience.
[68]
Chair Adam was aware of
the importance of having accurate knowledge of Ms. Tran’s current tasks,
since he stated in his affidavit that before the board made its decision, he
contacted Mr. Clarke [translation]
“for a description of the tasks for her current position”.
Mr. Clarke sent him the document, but warned him that the description was
not up to date. Chair Adam states, without providing any details, that he
revised this description of current tasks, but did not provide any information
on how this revision was carried out.
[69]
In his affidavit, Mario
Tremblay states that [translation]
“so that the applicant’s tasks and responsibilities in her current position may
be understood, he is attaching copies of the principal activities for the AU‑04
substantive position . . . as Exhibit ‘C’. Unfortunately,
Exhibit “C” is the description of tasks that Mr. Clarke had told
Chair Adam was out of date.
[70]
Jack Trassi simply
endorsed Chair Tremblay’s conclusions on this point.
[71]
In my opinion, such an
error is fundamental and determinative. In all three cases, the selection
process was flawed. This Court must intervene. The chairs acted arbitrarily in
maintaining the decisions.
[72]
Without elaborating,
and without deciding, I am of the opinion that there are other elements that
could justify the intervention of this Court, including (1) the fact that the
boards failed to contact the resource persons; (2) certain boards or chairs
were influenced by irrelevant considerations; (3) the feedback by Mr. Trassi
was incomplete; (4) Mr. Trassi delegated his decision to
Mr. Tremblay; and (5) some requirements were allegedly determined by the
assistant directors or exceeded the requirements stipulated. These issues will
have to be re-examined by new selection boards and new chairs.
JUDGMENT
THIS COURT ORDERS that in each of the files T‑493‑10,
T‑494‑10 and T‑503‑10:
1.
The application for
judicial review is allowed.
2.
The decisions made on
March 1, 2010, by Michel Adam and Mario Tremblay and on March 3,
2010, by Jack Trassi at the individual feedback stage, confirming that the applicant’s
application was rejected for each position for which she applied, are set
aside.
3.
The files in the
selection processes contemplated by the applications for judicial review are referred
back to the Agency for reconsideration of the applicant’s application by a
differently constituted board.
4.
With costs for each of
the files consolidated under T‑493‑10.
“François Lemieux”
Certified true
translation
Sarah Burns,
Translator
Email this Content