Date: 20110210
Docket: T-894-10
Citation: 2011 FC 159
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 10, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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YVES MAYRAND
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Applicant
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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 a
decision dated April 15, 2010, of the Assistant Director, Audit, of the
East Central Ontario Tax Services Office of the Canada Revenue Agency (the
respondent), filed under section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7, by Yves Mayrand (the applicant), following the rejection
of his request for a review of the selection board’s negative decision in a
competition to staff the position of an AU‑01 tax auditor.
Facts
[2]
The applicant has been working for the respondent
as a tax auditor (PM-02) since June 2002. He is trained as an accountant
and a member in good standing of the Certified General Accountants of Ontario. He
applied in an internal selection process conducted by the respondent to staff a
tax auditor position (AU‑01), the deadline of which was October 19,
2007.
[3]
The AU-1 tax auditor position was classified as
a unilingual English position, and the applicant chose English as the language
of correspondence for the selection process.
[4]
The selection process required that the skills
of all candidates be first assessed using standardized tests. Initially, the
applicant failed this first stage of the selection process, but was screened in
again after he completed an external assessment to reach the required level.
[5]
Candidates who passed the first stage went on to
the next stage, where their competency in Planning, Organizing and/or
Monitoring was assessed. This exam involved an interview with a selection
board, and a reference check with the candidates’ immediate superiors;
candidates could obtain a maximum score of 20 for the interview and 10 for the
references. A result of at least 60% was required, making the passing grade 18
out of 30.
[6]
The applicant met with the selection board and
answered the four questions, which were graded out of 20. He was awarded 11 out
of 20. His immediate superior gave him 5 out of 10, pointing out that the
applicant had to manage his workload better in order to meet deadlines. It
should be noted that an error was made when the scoring tool was sent to the
applicant’s supervisor: the file was mistakenly named “ECO Criminal Matters
CRAEEmployee-tef.doc”; the content, however, was not affected. This error was allegedly
made by the translation unit.
[7]
On April 14, 2009, the applicant was
informed in writing that he had been eliminated from the selection process
since he had not obtained the required pass mark. The applicant submitted a request
for individual feedback on the same day and chose to have the recourse
procedure conducted in French.
[8]
The documents were translated, and a Francophone
employee of the respondent working in the Audit Section, Marc Charron,
translated some of the documents even though he is not trained as a translator.
In accordance with the feedback procedure, the applicant submitted additional
comments on September 11, 2009.
[9]
The respondent confirmed its decision to
eliminate the applicant on November 19, 2009, and, on the same occasion,
notified him of his right to request a review of the decision.
[10]
On November 20, 2009, the applicant filed a
request to have the decision to eliminate him from the selection process
reviewed. In that request, he submitted that the tool used to assess the
Planning, Organizing and/or Monitoring competency was subjective and that the supervisor
should not have been consulted.
[11]
On the same day, that is, November 20,
2009, the applicant filed a grievance with his union, which was heard at a meeting
on March 8, 2010.
[12]
As a result of an error in communication with
the union, the respondent thought that the grievance and the request for review
would be heard at the same time, explaining the long time that elapsed before
the review procedure began.
[13]
On March 11, 2010, the applicant was
informed that his request would be dealt with in writing.
[14]
On April 15, 2010, Neil Young, Assistant Director,
Audit, rendered his decision, in which he rejected the applicant’s arguments
and upheld the decision of the selection board.
Impugned
decision
[15]
In his decision, Mr. Young first noted that
under the Directive on Recourse for Assessment and Staffing he had to determine
whether the candidate was treated in an arbitrary manner during the selection
process. Quoting the definition of “arbitrary” at section 4.2 of the
Directive, Mr. Young found that the applicant was not treated arbitrarily
and that the criteria, definitions and processes used to assess the applicant’s
competency in Planning, Organizing and/or Monitoring complied with the
respondent’s policy and procedures. He therefore did not recommend corrective measures.
[16]
In reaching that conclusion, Mr. Young
considered the information provided with the questions, the scoring key, and
the notes and summaries provided by the members of the selection board. He also
talked to the board members to properly understand the process and the context
in which a locally developed tool had been used. In addition, he points out
that all the applicant’s submissions had been submitted to him in writing and
translated into English for him. Mr. Young therefore considered the
applicant’s two main objections, the consultation of his immediate supervisor
and the subjectivity of the scoring tool. He also examined the applicant’s
arguments concerning the impact of the error in the name of the scoring file
sent to the applicant’s supervisor.
Relevant
legislation and policies
[17]
The following provisions of the Canada
Revenue Agency Act, S.C. 1999, c. 17, vest in the respondent an
exclusive right and authority to appoint employees and require the respondent
to develop a staffing program. The Public Service Employment Act,
S.C. 2003, c. 22, therefore does not apply to the respondent’s
employees:
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Appointment
of employees
53. (1) The
Agency has the exclusive right and authority to appoint any employees that it
considers necessary for the proper conduct of its business.
Commissioner’s
responsibility
(2) The
Commissioner must exercise the appointment authority under subsection (1) on
behalf of the Agency.
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Pouvoir d’embauche
de l’Agence
53. (1) L’Agence
a compétence exclusive pour nommer le personnel qu’elle estime nécessaire à l’exercice
de ses activités.
Nominations
par le commissaire
(2) Les
attributions prévues au paragraphe (1) sont exercées par le commissaire pour
le compte de l’Agence.
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Staffing
program
54. (1) The
Agency must develop a program governing staffing, including the appointment
of, and recourse for, employees.
Collective
agreements
(2) No collective
agreement may deal with matters governed by the staffing program.
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Programme de
dotation
54. (1) L’Agence
élabore un programme de dotation en personnel régissant notamment les
nominations et les recours offerts aux employés.
Exclusion
(2) Sont exclues
du champ des conventions collectives toutes les matières régies par le
programme de dotation en personnel.
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The following provisions of the Canada
Revenue Agency’s Staffing Program are relevant:
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4.3-1 The
Selection Process and Pre-Qualification Process are the principal mechanisms
for the promotion and appointment of staff (both internally and externally).
Selection Processes may also be used for staffing on a permanent, term or
acting basis, as well as lateral moves.
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4.3-4 The
Pre-Qualification Process (PQP) is the process by which individuals identify
career interests and can be assessed for pre-qualification for specific
positions. PQP’s will enable employees to be considered for further and
future selection.
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4.3-5 The
recourse available to individuals varies according to the type and stage of
selection process; recourse rights are outlined in the Staffing Program and
the Directive on Recourse for Assessment and Staffing.
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5.2 Individuals
have access to recourse mechanisms including Individual Feedback, Decision
Review and Independent Third Party Review, depending on the nature of the
staffing activity and as per the Directive on Recourse for Assessment and
Staffing.
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5.3 Individual
Feedback is provided upon request by the person(s) responsible for that
particular assessment, stage of the selection process or staffing action.
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5.5 Individual
feedback is also a mandatory step before proceeding to other forms of
staffing recourse.
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7.2 With the
exception of the assessment for a unilingual position, the ability to
communicate orally and in writing, all examinations, tests and interviews for
the purpose of determining qualifications of candidates shall be conducted in
the Official Language of the candidate’s choice.
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7.3 The
selection board members must be able to communicate effectively in the
official language(s) chosen by the candidate..
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7.4 Recourse
will be conducted in the official language of choice of the individual
seeking recourse.
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Annex L of the Staffing Program, Directive
on Recourse for Assessment and Staffing, describes the recourse available to
the applicant:
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4.1 In all
cases, the grounds for recourse for Individual Feedback, Decision Review and
Independent Third Party Review is whether the employee exercising recourse
was treated in an arbitrary way. The focus should be on the treatment of the
individual in the process and not on the evaluation of other
candidates/employees.
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4.2 The term arbitrary
is defined as follows:
“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.”
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4.3 For each of
the three recourse mechanisms, the review must be limited to circumstances
that are directly related to the stage in question of the assessment,
internal selection process or internal staffing action. For
example, the Independent Third Party Review will be limited to decisions made
during the placement stage of the internal selection process.
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9.1 The Authorized
Person responsible for the assessment, internal selection process
or internal staffing action or his or her delegate
(e.g., Selection Board Member, Pool Administrator, Resourcing
Advisor, Competency Consultant or Technical Competency Assessor):
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9.1.2 May choose to be accompanied by an individual
of his or her choice during the Decision Review. The role of the accompanying
person is that of an observer.
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9.2 The Decision
Reviewer
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9.2.3 May choose to conduct the Decision Review
verbally (in person or by telephone) or in writing (by letter or e-mail).
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9.2.4 Shall conduct any meetings or interviews in
the official language of choice of the candidate/employee.
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9.2.6 Shall conduct the review and gather such
information as is required in order to come to a decision. Generally, the
review is comprised of the following steps:
-Review documentation presented by the candidate/employee
and Authorized Person or delegate;
-Gather additional information, as required;
-Analyze the facts; and
-Make the final decision in writing and ensure that
it is recorded in the staffing file or the employee’s competency profile.
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“Authorized
Person”
Person who has
been granted the authority to exercise a specific staffing action in
accordance with CRA’s Delegation of Human Resources Authorities.
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“Decision
Reviewer”
This is:
-for internal selection
process (including non-PQP and PQP), supervisor of the Authorized
Person responsible for the internal selection process.
-for internal staffing
actions, supervisor of the Authorized Person responsible for the
internal staffing action. . . .
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Issues and
standard of review
[18]
This application for judicial review raises only
one issue, namely, whether the respondent’s decision was reasonable in the
circumstances. According to Judge Mandamin in Wloch v. Canada Revenue
Agency, 2010 FC 743, at paragraph 21, the standard of review applicable
to this issue, namely, whether the decision maker considered the appropriate
factors in arriving at his decision, is that of reasonableness.
[19]
The applicant, however, submits that this file
raises questions of procedural fairness and that the standard of review
applicable in the circumstances is that of correctness according to Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, at paragraph 43.
[20]
In this Court’s opinion, this application for
judicial review is reviewable on a standard of reasonableness, and the issues
raised by the applicant are reviewable on that standard.
[21]
Essentially, the applicant raises six (6)
grounds in support of his application for judicial review. I will review each
of these grounds on a standard of reasonableness.
A. First
ground
[22]
The applicant alleges that the respondent did
not respect the principles of natural justice since English-speaking candidates
were selected and chosen even though the applicant’s proceeding before this
Court had not yet been resolved. There is no evidence before the Court to prove
this allegation, and even if it had been proven, it did not amount to a breach
of the rules of natural justice. Indeed, it appears that the respondent is
keeping a position open pending this Court’s decision on the application for
judicial review filed by Mr. Mayrand. In the circumstances, the ground
raised by the applicant is therefore not valid.
B. Second
and third grounds
[23]
The applicant then argued that the misnamed file
that was sent to his supervisor on July 6, 2009, was derogatory and
intimidating. The applicant also submits that since the file used to prepare
the decision review request had an error in its name, there could also have
been errors in its content. In the applicant’s words, the error in the name
casts doubt on the committee’s ability and objectivity in managing information.
[24]
In the absence of concrete evidence of errors other
than that in the file name, which was acknowledged by the respondent, the Court
is unable to reach the same conclusion as the applicant. In fact, the applicant
failed to produce any concrete evidence that the file contained other errors. The
e-mail sent to the supervisor asking for references for the applicant was
called “#3 Translation Request- ECO Criminal MatterCRAEmployee-tef.doc”. The
applicant asked that the entire decision review process be conducted in French
as is permitted by statute and the respondent’s policies. An error was made by
the translation service used by the respondent. To conclude from that that the
review process is flawed and biased just because of a mistake in the heading of
an e-mail seems unreasonable in the circumstances. These grounds are therefore rejected.
C. Fourth
ground
[25]
The applicant submits that the lengthiness of
the selection, feedback and review process was unreasonable and that this had
resulted in a breach of procedural fairness. When one looks at how the file
unfolded, it can be seen that there was some delay in having the documents
translated. The Court must, however, conclude that the time limits prescribed
in the respondent’s regulations were generally met, with the exception of the
misunderstanding resulting from a miscommunication between the union and the
respondent’s Human Resources unit regarding the processing of the grievance in
March 2010. The respondent admits that there was some delay in having the
documents translated; it denies, however, that this delay prejudiced the
applicant in any way. A review of the timeline in this file leads the Court to
find that the applicant was not prejudiced by the delays; indeed, the
respondent has kept an auditor position open pending the decision of this
Court. The fourth ground is also rejected since the applicant was not
prejudiced by the delays.
[26]
The applicant also submits that he was
prejudiced because the board members also participate in the feedback and
review process, which is primarily designed to provide candidates with their
results and explanations for those results. In his opinion, the board was both
judge and party: there was therefore a breach of the rules of natural justice. A
careful review of the file leads to the conclusion that such was not the case. In
fact, the applicant seems to confuse the involvement of the board members at
the feedback level and the fact that Mr. Young consulted them at the final
decision review stage. At this last stage, it seems reasonable to the Court
that the board members were consulted on the timeline of the process. The Court
can therefore not accept the applicant’s argument.
D. Fifth ground
[27]
The applicant alleges in his written memorandum
that the determination of the final score is not only arithmetic but also
discretionary, since the board can, in his view, give additional marks to
candidates. When prompted to clarify this allegation, the applicant submitted
at the hearing that the assessment of the Planning, Organizing and/or
Monitoring competency by the board left room for arbitrariness. In fact, in
response to the Court’s question on the scoring key, the applicant pointed out
that the fact that there were no specific points allocated to the possible suggested
responses was evidence that there was room for discretion, if not
arbitrariness. In reply, the respondent argued before the Court that this part
of the candidates’ assessment was done using the assessment tools developed
locally, as permitted by the respondent’s staffing policy and regulations,
namely, Annex F, Directive on Assessment Methods.
[28]
Furthermore, according to the respondent, this
manner of proceeding respects the criteria of transparency, fairness and competency.
At the Court’s request, the respondent filed a copy of Directive F, a
reading of which reveals that using locally developed tools assessment tools to
assess a particular competency is only permitted when standardized assessment
tools do not exist. At the hearing, the applicant claimed that the respondent
has a standardized tool for assessing the Planning, Organizing and/or Monitoring
competency. If this is true, the Directive was violated. Was this a fatal
error? The Court does not think so, since Directive F permits exceptions
as long as Human Resources approve use of a locally developed assessment tool. Since
there is no evidence before the Court that standardized assessment tools were
indeed available in September 2007, it is impossible to find that the
Directive was violated.
[29]
Of concern, however, is the absence of an exact
scoring key for the various suggested responses. In fact, it cannot be argued
that the processes used complied with policy since they did not respect
Directive F, which provides, among other things, at page 8, for the
use of structured interviews. In such cases, the Directive provides at
page 9 that “(a)nswers to the questions must be evaluated against
established criteria. Developing rating scales and predetermining the ‘marks’
for each answer will greatly simplify the evaluation.” In the case of the
applicant, this part of the Directive was not followed since, as appears from
the record, the suggested answers were prepared but the rating scale provided
for only three major categories, with marks ranging from 0 to 11, 12 to 15 and,
lastly, 16 to 20, without specifying how much each answer sought was worth. If
the respective values of the main answers sought are not set in such a scale,
it becomes impossible to determine whether the standards of transparency,
fairness and competency that govern all of the respondent’s processes were
respected. Even though the respondent is no longer subject to the merit principle
that applies to staffing in the Public Service, the fact remains that, as
Judge Heneghan pointed out at paragraph 36 in Hains v. Canada
(Attorney General), 2001 FCT 861:
In my opinion
that argument must also fail. The Appeal Board provided detailed reasons to
express its view that the Selection Board erred in its use of the grid. It also
found that the grid had to be set aside because the members of the Selection
Board who testified were unable to explain how the grid was used. In my
opinion, these findings are sufficient bases for the Appeal Board to find that
the use of the marking grid was unreasonable.
[30]
In reviewing the individual marks given by the
three selection board members and their combined score for the answers given by
the applicant, it is impossible to determine the respective value of each of
the answers sought or their respective weights in relation to one another. In
these circumstances, the Court fails to see how Mr. Young could write in
his decision, which is under review here, that the criteria, definition and
process used to assess the applicant’s competency in Planning, Organizing
and/or Monitoring complied with the respondent’s policy and procedure, both of
which require transparency and fairness.
[31]
The scoring grid used was in no way transparent.
In fact, a reading of the selection board’s notes reveals that two members
checked off the same items in the key, while just one member gave a mark of 11.
Several items appearing on the grid were not checked off, yet some items were,
to indicate that the applicant had failed to deal with these items specifically,
while others were not, even though the applicant had not addressed them. Moreover,
the respective point value of each of the missing items is unknown. In these
circumstances, the Court has difficulty seeing how a determination as to the
reasonableness and non-arbitrariness of the process could be made. The key also
does not specify which answers are required for a candidate to obtain a passing,
or higher, mark. This makes it impossible to argue that there was no room for
arbitrariness. “Arbitrary” is defined as follows: “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 . . .”.
[32]
A reasonable decision requires that one can see
and understand the reasoning of the selection board and observe from a scoring
key that the candidate passed or failed depending on objectively allocated
points. When one cannot determine the value of the items to be scored or
identify the minimum items required to obtain a pass mark, it becomes
impossible to determine that the decision was reasonable. Consequently, the
Court finds that the review decision dated April 15, 2010, was not
reasonable in the circumstances.
[33]
The applicant also objected to the selection
board contacting his supervisor for references, which Directive F permits.
One could possibly also question this part of the assessment in terms of its
relevance, but it is not the role of this Court to substitute its judgment for that
of Human Resources on the relevance of the assessment tools used; instead the
Court has to ensure that Mr. Young’s decision was reasonable considering
all the circumstances and facts.
E. Sixth
ground
[34]
As to the sixth ground raised by the applicant,
the Court has seen no concrete evidence that the official languages policy was
breached. In these circumstances, this ground is also rejected.
[35]
The case is therefore referred back to the
respondent so that it can re-assess the applicant’s competency in Planning,
Organizing and/or Monitoring, with costs, which are limited to the
disbursements incurred by the applicant.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
- The
application for judicial review of the Canada Revenue Agency’s decision dated
April 14, 2010, is allowed and that the matter is referred back to the
respondent so that it can re-asses the applicant’s competency in Planning,
Organizing and/or Monitoring by using an appropriate assessment method, with
costs, which are limited to the amount of the applicant’s disbursements.
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