Date:
20130501
Docket:
T-728-12
Citation:
2013 FC 455
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
May 1, 2013
PRESENT: The
Honourable Mr. Justice Roy
BETWEEN:
DUNG TRAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is the second application for judicial review
undertaken by the applicant, Ms. Dung Tran. In both cases, the applications for
judicial review were made in relation to the staffing processes for three
positions for which the applicant had applied. They are:
- Senior International Auditor, Audit Division,
Eastern Quebec Tax Services Office (Quebec City site), 2009-8880-QUE-1206-8880;
- Auditor, Large Files, Audit Division, Eastern
Quebec Tax Services Office (Quebec City site), 2009-8882-QUE-1206-8882;
- Senior Tax Avoidance Auditor, Audit Division,
Eastern Quebec Tax Services Office (Quebec City site), 2009-8883-QUE-1206-8883.
[2]
Following the hearing, I informed the parties that I
intended to dispose of this second application for judicial review by granting
it. This constitutes the judgment and reasons.
[3]
First of all, it should be noted that counsel for both
parties conducted themselves in a highly professional manner. They spared the
Court from futile arguments and cut straight to the chase, identifying the real
issues and appropriate remedies to the extent that the Court feels compelled to
conclude in favour of the applicant. The concessions made by each side sought
to avoid the kinds of acrimonious debates which are generally not conducive to
resolving matters. It was in this spirit that concessions were made and
received.
[4]
Given the Court’s finding, it is not necessary, and would
not be useful, to deal with the merits of the case. It will suffice to briefly
outline the background, to decide the matter based on the record as it stands
and to order that it be referred back for a hearing de novo by a new
selection board to be constituted later.
[5]
This proceeding is an application for judicial review of a
decision, dated March 6, 2012, by a selection board of the Canada Revenue
Agency. That decision concluded that the applicant’s application did not meet
the pre-requisite criteria for the three selection processes at what is called
the “pre-requisite” stage.
[6]
In a decision dated August 19, 2011, my colleague, Justice
François Lemieux, issued a judgment (2011 CF 1010) between these same parties
in favour of Ms. Tran. The files were referred back to the Revenue Agency
for “reconsideration of the applicant’s application by a differently
constituted board”. Essentially, the Court found that the selection board did
not have an accurate picture of the tasks performed by the applicant even as
the review focused on her actual experience to determine whether she met the
pre-requisite criteria for the position.
[7]
Thus, a new selection board was constituted. It made its
finding in a brief written decision dated March 6, 2012. This decision
establishes three things:
(a)
that the members of the selection board met with
the applicant’s supervisor to clarify her tasks without her being present;
(b) that the review of the information, including
that provided by the supervisor, allowed them to determine that the applicant
did not meet the expectations at the pre-requisite stage. No further
explanation was provided;
(c)
and that the selection board informed the
applicant that the Agency’s Staffing Program provided for no recourse following
the application of a corrective measure.
[8]
The Court has concluded that this approach is lacking in
several respects.
[9]
The parties agreed that the appropriate standard of review
for questions of procedural fairness is that of correctness (Canada
(Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339) and that of
reasonableness for questions of mixed fact and law. I agree. Indeed, there is
an abundance of case law to this effect, the Federal Court of Appeal having
recently decided, in a case involving labour law, that “The standard of review
applicable to an administrative tribunal’s determination of questions of mixed
fact and law is presumed to be reasonableness” (Payne v Bank of Montreal,
2013 FCA 33, para 32).
[10]
There is no need to undertake a detailed review of the
staffing process at the Canada Revenue Agency to dispose of the application for
judicial review. The Agency is required to develop a program governing staffing
(section 54, Canada Revenue Agency Act, SC 1999, c. 17). For the
purposes of this case, suffice it to note that the staffing process that was
adopted consists of three main steps: the pre-requisite review stage, the
assessment stage and the placement stage. The applicant failed to make it past
the first stage in two attempts.
[11]
At the pre-requisite review stage, The Staffing Program
provides that the candidate’s expression of interest is to be reviewed for the
pre-requisites that were identified in the notice of job opportunity or the
Statement of Staffing Requirements (section 4.3.2.1). The program provides for
its own recourse mechanism in the form of individual feedback (section 4.3.2.2).
This feedback is a mandatory step before proceeding to other forms of staffing
recourse (section 5.5). Moreover, this individual feedback serves two purposes.
It allows for corrective measures to be taken in cases where the selection
board has failed to properly assess the information provided by the candidate
(sections 4.3.2.2. and 4.3.2.3.) and it has an educational purpose in that it
allows the candidate “to receive input on development needs” (section 5.6).
[12]
Individual feedback therefore allows for the candidate to
be provided with the reasons why his or her application was unsuccessful. If
the selection board has erred, it may correct itself. The rejection of an
application is subject to judicial review on a reasonableness standard, unless
there has been a breach of the rules of procedural fairness. A reviewing court
must exhibit great deference with regard to the decision. However, the decision
must have the distinction of being within the realm of reasonableness:
. . . In judicial review, reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
(Dunsmuir v New Brunswick,
[2008] SCC 1 SCR 190 (Dunsmuir), at para 47).
[13]
The reasons obviously do not need to be perfect or
explained at great length. Given that "the reasons must be read together
with the outcome and serve the purpose of showing whether the result falls
within a range of possible outcomes" (see Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 708 at
para 14).
[14]
In this case, the selection board seems to have confused
the corrective measure that may be taken in the context of the assessment of
pre-requisites with the corrective measure that was Justice Lemieux’s decision
to refer the matter back for reconsideration by a differently constituted
board. This would explain the statement, in the decision dated March 6, 2012, that
no recourse exists from a corrective measure. It would appear that the board
believed that there was but one corrective measure and that it consisted of the
judgment of Justice Lemieux. Given that the case was under a de novo review,
the applicant was entitled to individual feedback, which she was not given.
Justice Lemieux’s decision was not the corrective measure described in the
Staffing Program. In fact, the respondent gracefully conceded this point at the
hearing. As a result, the applicant did not receive the reasons for the
rejection of her application, which would have allowed for corrective measures to
be taken, as the program specifically provides for.
[15]
Indeed, had there been individual feedback, it may have
been possible to resolve the other issue in this case. It appears that the
applicant’s supervisor had contacted the selection board, or some of its
members, in order for clarification of the applicant’s tasks (see decision letter
dated March 6, 2012).
[16]
This approach constitutes a breach of the audi alteram
partem rule. Here again, the staffing process adopted by the Agency makes
it possible to avoid these kinds of difficulties through the use of individual
feedback. Sections 8.1.5, 8.1.6, 8.1.8, 8.1.9, 8.1.10 and 8.1.14 of the “Directive
on Recourse for Assessment and Staffing” are particularly eloquent in this
regard. A reproduction of these sections is attached as an appendix to these
reasons. Either through error, or otherwise, this selection board decreed that
no such feedback should be provided.
[17]
This means that the decision is reviewable on a
reasonableness standard, since it is not possible to determine that the
decision was transparent and intelligible within the meaning of Dunsmuir
(above). The decision is also reviewable on a correctness standard because the
applicant was disadvantaged with regard to natural justice (audi alteram
partem).
[18]
The respondent argued that it should suffice to return the
decision to the selection board in order to receive feedback on development
needs. This is a misunderstanding of the flaws that affect the decision. It is
wrong to accept the findings of this selection board with respect to the
pre-requisite review. Not only did the lack of individual feedback deprive the
applicant of advice on her professional development needs, it tainted the
decision itself.
[19]
In his decision, Justice Lemieux determined that the individual
feedback was so flawed that the error “is fundamental and determinative”. Far
from remedying this deficiency, the new board did not even provide individual
feedback. The situation called for a completely new assessment, as if the
preceding two exercises had never taken place.
[20]
At the hearing the applicant waived costs that would have
been calculated on a solicitor and client basis. In addition, she would be
content to have the matter referred back to a differently constituted selection
board for a new pre-requisite review.
[21]
The Court has noted the concessions on the applicant’s
part. The Court insists, however, that the next pre-requisite review must be
undertaken with the utmost rigour and good faith. It will be a de novo
proceeding in which the applicant must benefit from all of the prerogatives she
is entitled to under the program and directive. The quality of the decision to
be rendered will be measured against the fact that the same facts led to two
applications for judicial review in which the individual feedback process was
deemed to have been deficient. It cannot seek to endorse the “previous decisions.”
JUDGMENT
The
Court orders that in each of the selection processes that were the subject of
this application for judicial review in docket T-728-12:
1.
The application for judicial review is granted.
2.
The decision dated March 6, 2012 with regard to the three
selection processes is quashed and set aside.
3.
The staffing processes that are the subject of this
application for judicial review are referred back to the Canada Revenue Agency
for redetermination in new staffing processes by a selection board composed of
persons other than those who sat on the previous boards, and whose decisions
were the subject of two applications for judicial review.
4.
Further to the agreement reached between the parties with
regard to costs, the respondent shall pay the sum of five thousand dollars
($5,000.00) to the applicant.
“Yvan Roy”
Certified true translation
Sebastian Desbarats, Translator
APPENDIX
Staffing
Program
Annex L
Directive on
Recourse
for Assessment
and Staffing
8.1 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):
8.1.5
Will take the time to review any relevant documents,
questions or discussion points prior to providing Individual Feedback.
8.1.6
Will provide the candidate/employee with meaningful
information regarding his or her own assessment.
8.1.7
…
8.1.8
Will review the decision relevant to the
candidate’s/employee’s concerns and respond to any questions the
candidate/employee may have regarding that stage of the internal selection
process or the assessment or internal staffing action.
8.1.9
Will provide the candidate/employee with access to his or
her own evaluation documents and will provide a copy in advance upon request,
except for standardized assessment tools that may have been used.
8.1.10 Will
provide appropriate information to explain the basis upon which the assessment or
staffing decision was made. The candidate/employee should not be provided with
any assessment information regarding other candidates/employees, which would
contravene the Privacy Act.
8.1.11 …
8.1.14 Will
take necessary corrective measures where appropriate, including allowing the
candidate/employee to continue as a candidate in the internal selection
process.
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