Date: 20070921
Docket: T-340-07
Citation: 2007 FC 940
Ottawa, Ontario, September 21,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
NEIL
CLEGG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by Chairperson Line
Chandonnet of the Public Service Appeal Board (Appeal Board) dated January 18,
2006, granting the respondent’s appeal made pursuant to section 21 of the Public
Service Employment Act, R.S.C. 1985, c. P-33, as amended (PSEA).
FACTS
The competition process
[2]
In
the spring of 2005, the respondent participated in a competition for an EX-01
rotational position with the Department of International Trade Canada. The
competition required candidates to undertake the Standardized Situational
Judgment Test (SSJT), a test prepared specifically for the Departments of
Foreign Affairs and International Trade (DFAIT) EX-01 rotational staffing
competitions. The SSJT is a psychometric test developed by the Personnel
Psychology Centre (PPC). It is designed to assess the judgment required for
handling issues in work-related situations at the EX-01 level.
[3]
For
this competition, the SSJT was administered to 370 candidates throughout the
world. The instructions provide that candidates are to be given two hours to
complete the test. The test consisted of 40 fact situations and questions. However,
an information sheet circulated with the SSJT indicated that candidates would only
be given 90 minutes to complete the test. DFAIT admits that this was a clerical
error and that candidates were to be given two hours to complete the SSJT. When
the respondent took the SSJT on July 6, 2005, he was given 90 minutes to
complete the test. One other candidate was given this reduced time limit; all
other candidates were given two hours for completion.
[4]
When
it was discovered that the respondent had not been given the same time as other
candidates, department officials notified the PPC, requesting advice on how to
proceed. Upon recommendation from PPC’s Manager of Test Consultation, the
respondent was asked if he wished to review his test for an additional 45
minutes. He replied that he would be willing to do so.
[5]
On
August 31, 2005, the respondent reviewed his SSJT for the allotted 45 minutes. After
reviewing his test, the respondent’s score dropped from 69% to 66%. Because the
pass-mark was 72%, the respondent was screened out of the competition.
[6]
On
August 15, 2006, the respondent commenced an appeal pursuant to section 21 of
the PSEA. The appeal was heard by the Appeal Board on December 14, 2006 in Ottawa, Ontario.
Decision under review
[7]
On
January 18, 2007 the Appeal Board allowed the respondent’s appeal on the
grounds that he was not assessed on the same standards as the other candidates.
The Chair found that granting the respondent an additional 45 minutes to review
his test was an insufficient corrective measure since it put him in a position
where he effectively had to write the SSJT twice. Chair Chandonnet states at
paragraphs 20 and 21 of the decision:
¶ 20 I fail to see how compressing a 2
hour exam in 1.5 hours, will allow for the same outcome as the other
candidates. I also fail to see how adding a 45 minute period, two months after
the fact, puts a candidate in the same frame of mind as other candidates who
[have] benefited from a full 2 hours. The evidence showed that the original
test was taken by the appellant on July 6th 2005 and that the
additional 45-minutes was administered on August 31st 2005. The
appellant had to basically rush though his questions thinking that he had 1.5
hours to complete the test.
¶ 21 What the evidence showed was that
the appellant was not submitted to the same standards as the other candidates.
He was basically put in a position where he had to write the SSJT twice; once
on July 6th , where he had to do so in a compressed timeframe, and
once on August 31st, approximately two months later, where he was
given even less time to go through the exam(30 minutes).
[8]
In
reaching this decision, the Appeal Board relied on the 2000 Federal Court of
Appeal judgment in Buttar v. Canada (Attorney General) (2000), 254 N.R.
368 (F.C.A.), where the Court ruled at paragraph 24:
¶ 24 In the circumstances of this case, the validity of the
appointment … could not fairly be determined without considering whether his
qualifications were assessed on the basis of the same standards as were applied
to other candidates simultaneously seeking promotion to the same level….
[9]
It
is this decision allowing the respondent’s appeal that is the subject of this
application for judicial review.
RELEVANT LEGISLATION
[10]
The
principle underlying all public service appointments is the merit principle
contemplated in subsection 10(1) of the PSEA. Section 21 of the PSEA provides a
mechanism allowing unsuccessful candidates to appeal an appointment to an
Appeal Board constituted by the Public Service Commission. Section 26 of the Public
Service Employment Regulations, 2000, S.O.R./2000-80 (the Regulations)
provides a system for the disclosure of relevant documents. The relevant
legislation is set out in Annex “A” of these reasons.
ISSUES
[11]
The
applicant raises three issues:
1. Did the Appeal Board err in failing to
consider and analyze important relevant evidence?
2.
Did the Appeal Board
err in failing to admit relevant evidence from a witness?
3. Did the Appeal Board err in
allowing the appeal after the respondent did not object to the additional 45
minutes to complete the test until after he was advised he had failed the test?
STANDARD OF REVIEW
[12]
In
Dr. Q v. The College of Physicians and Surgeons of British Columbia,
2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court of Canada reaffirmed the
primacy of the pragmatic and functional approach in relation to the review of
administrative decisions, holding at paragraph 25:
¶ 25 For this reason, it
is no longer sufficient to slot a particular issue into a pigeon hole of
judicial review and, on this basis, demand correctness from the decision-maker.
Nor is a reviewing court’s interpretation of a privative clause or mechanism of
review solely dispositive of a particular standard of review. … The
pragmatic and functional approach demands a more nuanced analysis based on
consideration of a number of factors. This approach applies whenever a court
reviews the decision of an administrative body. … Review of the conclusions
of an administrative decision-maker must begin by applying the pragmatic and
functional approach.[Emphasis
added.]
[13]
In
Davies v. Canada (Attorney General), 2005 FCA
41, 330 N.R. 283, the Federal Court of Appeal considered the standard of review
to be applied by a reviewing judge to the decisions of an Appeal Board
constituted pursuant to section 21 of the PSEA. In applying the pragmatic and
functional approach, the Court found that pure questions of law are to be
reviewed on a standard of correctness, while questions of mixed fact and law
are to be accorded more deference and are reviewable on a standard of
reasonableness simpliciter.
[14]
The
parties are in agreement that when determining whether the Chairperson’s
conclusions are supported by the evidence, the standard to be applied is that
of reasonableness simpliciter. As Madam Justice Heneghan made clear in Hains
v. Canada (Attorney
General),
2001 FCT 861, 209 F.T.R. 137 at paragraph 26:
¶ 26 In my opinion, the
present application concerns the review of the Appeal Board’s decision with
respect to its factual findings about the Selection Board’s decision and the
Appeal Board’s application of the merit principle pursuant to section 10 of the
Act. The Appeal Board reviewed the evidence presented to it. The question is
whether the Appeal Board’s conclusions are supported by that evidence. The
applicable standard, then, is reasonableness.
[15]
In
relation to issues of procedural fairness and natural justice, it is clear that
the pragmatic and functional analysis does not apply: Sketchley v. Canada
(Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392 at paragraph 52,
citing Canadian Union of Public Employees v. Ontario (Minister of
Labour),
2003 SCC 29, [2003] 1 S.C.R. 539 at paragraphs 100-103. As the Federal Court of
Appeal makes clear at paragraph 53 of Sketchley:
¶ 53 [The Supreme Court of Canada’s
decision in Canadian Union of Public Employees] directs a court, when
reviewing a decision challenged on grounds of procedural fairness, to isolate
any act or omission relevant to procedural fairness….This procedural
fairness element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached its duty. [Emphasis
added.]
ANALYSIS
Issue No. 1: Did the Appeal
Board err in failing to consider and analyze important relevant evidence?
[16]
The
applicant states that the corrective measures taken by the Selection Board were
sufficient to place the respondent in an equal position in relation to others
who took the test. In support of this position, the applicant’s witness, Dr.
David Forster, led evidence that the nature of the SSJT was such that the
combined effect of the original 90 minutes and the additional 45 minutes
ensured that the respondent was assessed “in an equitable manner relative to
other candidates”: Affidavit of Dr. David Forster at paragraph 11.
[17]
In
her decision, the Chairperson disagreed with the applicant’s position, finding
that the corrective solution prevented the respondent from being assessed on
similar standards to other candidates. As stated above, the Chairperson held at
paragraph 21 of her decision:
¶ 21 What the evidence showed is that
the appellant was not submitted to the same standards as the other candidates.
He was basically put in a position where he had to write the SSJT twice; once
on July 6th, where he had to do so in a compressed timeframe, and
once on August 31st, approximately two months later, where he was
given even less time to go through the exam.
The Chairperson’s decision, however, makes
no reference to Dr. Forster’s testimony; namely his contention that the nature
of the test meant that time was not an important factor in assessing a
candidate’s performance on the SSJT.
[18]
Based
on this omission, the applicant submits that the Chairperson committed a
reviewable error in ignoring the expert evidence presented to her. In support
of this position, the applicant relies on Cedepa-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, where Justice Evans
held that:
¶ 17 … the more important the
evidence that is not mentioned specifically and analyzed in the agency’s
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact “without regard to the evidence”…. In other words, the
agency’s burden of explanation increases with the relevance of the evidence in
question to the disputed facts. Thus, a blanket statement that the agency has
considered all the evidence will not suffice when the evidence omitted from any
discussion in the reasons appears squarely to contradict the agency’s finding
of fact. Moreover, when the agency refers in some detail to evidence supporting
its finding, but is silent on evidence pointing to the opposite conclusion, it
may be easier to infer that the agency overlooked the contradictory evidence
when making its finding of fact. [Emphasis added.]
[19]
It is clear that the
evidence of Dr. Forster is integral and important to the applicant’s position
that the additional 90 minutes provided to Mr. Clegg was sufficient to place
Mr. Clegg in an equitable position with the other candidates who wrote the
test. However, from reading the partial transcript of the hearing (part of the
transcript is missing due to an administrative error) and from reading the
decision of the Appeal Board, I am satisfied that the Appeal Board did consider
and analyze Dr. Forster’s evidence. The partial transcript shows that the Chairperson
specifically considered Dr. Forster’s position, and referred to him by name.
This was at the outset of the hearing. Dr. Forster gave further testimony later
in the hearing for which the transcript is missing. Also, in reading the
decision, the Appeal Board considers and analyzes the substance of Dr.
Forster’s opinion evidence and rejects it. Accordingly, the Appeal Board did
not err in law in failing to consider and analyze this evidence.
Issue No. 2: Did the
Appeal Board err in failing to admit relevant evidence from a witness?
[20]
Subsection
26(1) of the Regulations states that an appellant is entitled to any document
that “pertains to the appellant or to the successful candidate and that may be
presented before the appeal board.” As Mr. Justice Phelan stated in Levy v.
Canada (Attorney General), 2004 FC 262, 248 F.T.R. 170 at paragraph 21, the
word “pertains” should be given wide interpretation and should be read as being
equivalent to, relevant or otherwise having a nexus with the
appellant or the successful candidate.
[21]
At
the hearing, the applicant’s witness, Dr. Forster, sought to introduce the test
score of the other candidate who was in the same situation as the respondent. The
applicant contends that this documentary evidence was relevant in that it
supported the applicant’s position that the candidates’ marks were not a
function of the amount of time that they had to write the SSJT.
[22]
At
the Appeal Board hearing, the Chairperson refused to allow the evidence on the
ground that it was not admissible pursuant to section 26 of the Regulations.
The applicant alleges that the Chairperson misinterpreted the purpose of
section 26, stating that nothing in the section prohibits the applicant from
tendering evidence relating to another candidate’s test scores or makes such
evidence inadmissible.
[23]
Since
this evidence was not previously disclosed to the respondent, the Chairperson
correctly refused to admit the evidence. The respondent is entitled to know in
advance the documents which the applicant intends to rely upon at the hearing
so that the respondent can properly respond. The applicant could have, but did
not request an adjournment of the hearing to make proper disclosure.
Issue No. 3: Did the Appeal
Board err in allowing the appeal after the respondent did not object to the additional
45 minutes to complete the test until after he was advised he had failed the
test?
[24]
The
applicant submits that a candidate to a selection process must object to an
important matter affecting his or her performance in an interview or test or
else he waives his right to object later. The applicant states that because the
respondent raised no concern or objection over the testing conditions until he
had been screened from the competition, the Chairperson erred in law in
allowing his appeal.
[25]
In
support of this position, the applicant refers to Cyr v. Canada (Attorney
General)
(2000), 201 F.T.R. 191, where Madam Justice Tremblay-Lamer held at paragraphs
18 and 25:
¶ 18 The decisions of this Court have held on many occasions
that a candidate seeking to have the selection board take into account his or
her handicap, illness or any other factor likely to affect his or her
performance in the interview or test must draw the matter to the selection
board’s attention clearly and unequivocally….
¶ 25 It
was only after the eligibility lists were published that the plaintiffs alleged
that they had suffered serious hardship at the interviews. Unfortunately, it was
too late.
[26]
The
respondent maintains that Cyr is distinguished from the case at bar
since “the factors that created difficulties for the candidates [in Cyr]
were external causes and beyond the actual control or knowledge of the
Selection Board”. In this case, however, the Selection Board was aware – and in
fact was the cause of – the irregularities in the testing process. In such
situations, the Selection Board has already been made aware that irregularities
in the process have occurred that may negatively impact on a candidate’s
performance.
[27]
I
agree with the respondent. It would be unreasonable to expect the respondent to
take umbrage with the testing process prior to being informed that he had been
screened out of the competition. As the Chairperson states at paragraph 23 of
her decision:
¶ 23 It is clear from the evidence that the
appellant applied on the competition so that he would have a chance to be
promoted. In order for him to consolidate that chance, he had to go through
each and every step of the assessment and be successful in doing so. Had the
appellant refused the 45-minute solution, the evidence suggested that his
participation in this selection process would have stopped there, as none of
the other solutions envisaged by the Department to correct the administrative
error committed, were acceptable solutions to the Department.
[28]
The
Appeal Board concluded that the respondent considered that he had no choice but
to review the test for an additional 45 minutes as a solution, and not doing so
would have excluded him from the competition. Failure to object is not the
equivalent to the legal principle of waiver where a party must object to a
breach of natural justice as soon as it arises if that party wishes to rely
upon that breach at a subsequent appeal. The respondent’s participation in a
competition process is different than participating in a judicial or quasi
judicial hearing. In a judicial or quasi judicial hearing, the party must
object at the first opportunity when it is reasonable to expect to do so. The
purpose of this requirement is judicial economy. If a party is permitted to
obtain judicial review of adverse decisions by remaining silent in the face of
known problems the party will remain silent and this will result in a
duplication of hearings (see Mohammadian v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 309 at paras. 25 and 26). Accordingly
the Appeal Board did not err in allowing the appeal on this basis.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed with costs.
“Michael
Kelen”
Annex “A”
Public Service Employment Act, R.S.C. 1985, c. P-33, as amended
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Appointments to be based on merit
10. (1)
Appointments to or from within the Public Service shall be based on selection
according to merit, as determined by the Commission, and shall be made by the
Commission, at the request of the deputy head concerned, by competition or by
such other process of personnel selection designed to establish the merit of
candidates as the Commission considers is in the best interests of the Public
Service.
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Nominations au mérite
10.
(1) Les
nominations internes ou externes à des postes de la fonction publique se font
sur la base d’une sélection fondée sur le mérite, selon ce que détermine la
Commission, et à la demande de l’administrateur général intéressé, soit par
concours, soit par tout autre mode de sélection du personnel fondé sur le
mérite des candidats que la Commission estime le mieux adapté aux intérêts de
la fonction publique.
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Appeals
21. (1) Where a person is
appointed or is about to be appointed under this Act and the selection of the
person for appointment was made by closed competition, every unsuccessful
candidate may, within the period provided for by the regulations of the
Commission, appeal against the appointment to a board established by the
Commission to conduct an inquiry at which the person appealing and the deputy
head concerned, or their representatives, shall be given an opportunity to be
heard.
(1.1) Where a
person is appointed or about to be appointed under this Act and the selection
of the person for appointment was made from within the Public Service by a
process of personnel selection, other than a competition, any person who, at
the time of the selection, meets the criteria established pursuant to
subsection 13(1) for the process may, within the period provided for by the
regulations of the Commission, appeal against the appointment to a board
established by the Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their representatives, shall be
given an opportunity to be heard.
(2) Subject to
subsection (3), the Commission, on being notified of the decision of a board
established under subsection (1) or (1.1), shall, in accordance with the
decision,
(a) if the
appointment has been made, confirm or revoke the appointment; or
(b) if the
appointment has not been made, make or not make the appointment.
(2.1) Where the
appointment of a person is revoked pursuant to subsection (2), the Commission
may appoint that person to a position within the Public Service that in the
opinion of the Commission is commensurate with the qualifications of that
person.
(3) Where a board
established under subsection (1) or (1.1) determines that there was a defect
in the process for the selection of a person for appointment under this Act,
the Commission may take such measures as it considers necessary to remedy the
defect.
(4) Where a
person is appointed or is about to be appointed under this Act as a result of
measures taken under subsection (3), an appeal may be taken under subsection
(1) or (1.1) against that appointment only on the ground that the measures so
taken did not result in a selection for appointment according to merit
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Appels
21. (1) Dans le cas
d’une nomination, effective ou imminente, consécutive à un concours interne,
tout candidat non reçu peut, dans le délai fixé par règlement de la
Commission, en appeler de la nomination devant un comité chargé par elle de
faire une enquête, au cours de laquelle l’appelant et l’administrateur
général en cause, ou leurs représentants, ont l’occasion de se faire
entendre.
(1.1) Dans le
cas d’une nomination, effective ou imminente, consécutive à une sélection
interne effectuée autrement que par concours, toute personne qui satisfait
aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé par
règlement de la Commission, en appeler de la nomination devant un comité
chargé par elle de faire une enquête, au cours de laquelle l’appelant et
l’administrateur général en cause, ou leurs représentants, ont l’occasion de
se faire entendre.
(2) Sous
réserve du paragraphe (3), la Commission, après avoir reçu avis de la
décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de
celle-ci:
a) si la
nomination a eu lieu, la confirmer ou la révoquer;
b) si la
nomination n’a pas eu lieu, y procéder ou non.
(2.1) En cas de
révocation de la nomination, la Commission peut nommer la personne visée à un
poste qu’elle juge en rapport avec ses qualifications.
(3) La
Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à
toute irrégularité signalée par le comité relativement à la procédure de
sélection.
(4) Une
nomination, effective ou imminente, consécutive à une mesure visée au
paragraphe (3) ne peut faire l’objet d’un appel conformément aux paragraphes
(1) ou (1.1) qu’au motif que la mesure prise est contraire au principe de la
sélection au mérite.
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Public Service Employment Regulations, 2000, S.O.R./2000-80
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APPEALS
26. (1) An appellant shall be
provided access, on request, to any information, or any document that
contains information, that pertains to the appellant or to the successful
candidate and that may be presented before the appeal board.
(2) The deputy head concerned shall provide the
appellant, on request, with a copy of any document referred to in subsection
(1).
(3) Despite subsections (1) and (2), the deputy head concerned or
the Commission, as appropriate, may refuse to allow access to information or
a document, or to provide a copy of a document, if the disclosure might
(a) threaten national security or any person's safety;
(b) prejudice the continued use of a standardized test that is
owned by the deputy head’s department or the Commission or that is
commercially available; or
(c) affect
the results of such a standardized test by giving an unfair advantage to any
individual.
(4) If the deputy head concerned or the Commission
refuses to allow access to information or a document under subsection (3),
the appellant may request that the appeal board order such access.
(5) If the appeal board orders access to information or a document
under subsection (4), that access is subject, before and during the hearing,
to any conditions that the appeal board considers necessary to prevent the
situations described in paragraphs (3)(a) to (c) from
occurring.
(6) Any information or document obtained under this section shall
be used only for purposes of the appeal.
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APPELS
26. (1) L’appelant a accès sur demande à l’information,
notamment tout document, le concernant ou concernant le candidat reçu et qui
est susceptible d’être communiquée au comité d’appel.
(2)
L’administrateur général en cause fournit sur demande à l’appelant une copie
de tout document visé au paragraphe (1).
(3) Malgré les
paragraphes (1) et (2), l’administrateur général en cause ou la Commission
peut refuser de donner accès à l’information ou aux documents ou de fournir
copie des documents dont l’un ou l’autre dispose, dans le cas où cela
risquerait :
a) soit de menacer
la sécurité nationale ou la sécurité d’une personne;
b) soit de nuire à
l’utilisation continue d’un test standardisé qui appartient au ministère de
l’administrateur général en cause ou à la Commission ou qui est offert sur le
marché;
c)
soit de fausser les résultats d’un tel test en conférant un avantage indu à
une personne.
(4) Si
l’administrateur général en cause ou la Commission refuse de donner accès à
de l’information ou à des documents aux termes du paragraphe (3), l’appelant
peut demander au comité d’appel d'en ordonner l’accès.
(5) Si le comité
d’appel ordonne que l’accès soit donné à de l’information ou à des documents
en vertu du paragraphe (4), cet accès est assujetti, avant et pendant
l’audition, aux conditions que le comité d’appel estime nécessaires pour
prévenir les situations décrites aux alinéas (3)a) à c).
(6) L’information
ou les documents obtenus en vertu du présent article ne peuvent être utilisés
que pour les besoins de l’appel.
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