Date: 20070518
Docket: A-439-06
Citation: 2007 FCA 197
CORAM: LINDEN J.A.
SEXTON J.A.
RYER
J.A.
BETWEEN:
DALE MCGREGOR
Appellant
and
ATTORNEY GENERAL OF CANADA,
LYNNE LAJOIE and SUSAN
MCKENZIE
Respondents
REASONS FOR JUDGMENT
SEXTON J.A.
[1]
Dale
McGregor unsuccessfully participated in a closed competition to staff vacancies
within Correctional Service Canada (the “Department”). His subsequent appeals
against the selections made for appointment to the Public Service Commission of
Canada Appeal Board (the “Appeal Board”) pursuant to section 21 of the Public
Service Employment Act, R.S.C. 1985, c. P-33 (“PSEA”) were dismissed.
Justice von Finckenstein of the Federal Court likewise dismissed Mr. McGregor’s
application for judicial review of the Appeal Board’s decision, as set out in Dale
McGregor v. Attorney General of Canada et al., 2006 FC 1193.
[2]
Mr. McGregor
now appeals to this Court. He maintains that Justice von Finckenstein and the
Appeal Board erroneously concluded that the appellant in an appeal under
section 21 of the PSEA has the onus of impeaching the selection process.
Moreover, he maintains that there was an insufficient evidentiary framework on
which the Appeal Board could have reached its conclusions.
[3]
For the
reasons that follow, I would dismiss the appeal.
BACKGROUND
[4]
Mr.
McGregor took part in a closed competition held by Correctional Service Canada for
the position of Regional Administrator, Human Resources (PE-06) in the Pacific
and Ontario Regions. These competitions followed an appeal by Mr. McGregor
regarding a previous competition to staff the same position in the Pacific
Region. Candidates possessing the requisite education and experience were
assessed by a selection board (the “Selection Board”) through a written exam,
which tested their knowledge qualifications, and a simulation and structured
interview process, which was used to evaluate abilities and personal
suitability qualifications. Reference checks were also conducted to verify
information regarding personal suitability.
[5]
Mr.
McGregor did not pass the knowledge exam. He therefore did not participate in
the other elements of the assessment process and was not considered for the
positions.
[6]
Mr.
McGregor subsequently appealed to the Appeal Board against the selections made
for appointments pursuant to section 21 of the PSEA.
DECISIONS BELOW
1) Decision of the Appeal Board
[7]
Before the
Appeal Board, Mr. McGregor alleged that one of the successful candidates did
not meet the education requirement for the positions. He also argued that the
successful candidates had an undue advantage in the competition because they
had been given acting assignments to positions classified as or equivalent to
PE-06 before and after the initial competition, which was the subject of Mr.
McGregor’s earlier appeal. Finally, Mr. McGregor submitted that there were
numerous inconsistencies in the conduct of the competition, essentially arguing
that the Selection Board failed to demonstrate an adequate evidentiary
framework to establish that the most meritorious candidates were chosen.
[8]
The Appeal
Board rejected all of Mr. McGregor’s allegations. It found no basis for
intervention on account of Mr. McGregor’s suggestion that the successful
candidates did not meet the education requirement or enjoyed an unfair
advantage in the selection process. Likewise, the Appeal Board found nothing
inappropriate about the conduct of the selection process. It held that the onus
was on Mr. McGregor to demonstrate that the merit principle was not respected
by the Selection Board. In the Appeal Board’s view, Mr. McGregor failed to
satisfy this onus. Consequently, Mr. McGregor’s appeals were dismissed.
2) Decision of von Finckenstein
J.
[9]
Mr.
McGregor sought judicial review of the Appeal Board decision in the Federal
Court. Before von Finckenstein J., Mr. McGregor argued that the Appeal Board
had erred in two respects. First, he submitted that the Appeal Board erred in
placing the primary onus on Mr. McGregor to adduce evidence in support of his
allegations. Second, Mr. McGregor maintained that the Appeal Board erred in
finding that the Selection Board had demonstrated an appropriate evidentiary
framework to support its evaluations. Justice von Finckenstein rejected both
grounds of review.
[10]
Justice
von Finckenstein stressed that the appeal process under the PSEA is an
adversary one in which the appellant has the onus of establishing a real
possibility that the merit principle was not respected. In his view, only when the
appellant has satisfied this onus does the onus shift to the selection board to
establish an evidentiary framework for its evaluations. Reviewing Mr. McGregor’s
allegations that there were inconsistencies in the marking of the knowledge
exam, von Finckenstein J. could find no error in the Appeal Board’s conclusion
that Mr. McGregor failed to satisfy his onus of demonstrating these
inconsistencies.
[11]
In view of
this conclusion, von Finckenstein J. found it unnecessary to consider Mr.
McGregor’s submission that the Selection Board failed to provide cogent evidence
to support its assessment of the candidates’ abilities and personal suitability
characteristics. Mr. McGregor argued before von Finckenstein J. that because
the only witness called by the Department could not provide specifics as to how
the candidates’ abilities and personal suitability characteristics were
evaluated, it was impossible for him to challenge the consistency or
appropriateness of the marks awarded. Justice von Finckenstein noted, however,
that Mr. McGregor failed the knowledge test and therefore was not assessed for
his abilities and personal suitability. Having found that the Appeal Board did
not err with regard to its findings on the knowledge element, von Finckenstein
J. concluded that there was no need for him to consider Mr. McGregor’s
allegations regarding the other two elements on which Mr. McGregor was not
tested. Accordingly, von Finckenstein J. dismissed the application for judicial
review.
ISSUES
[12]
This
appeal raises three broad issues:
1.
Which
party has the burden of proof in an appeal under section 21 of the PSEA?
2.
Did von
Finckenstein J. err in refusing to consider Mr. McGregor’s allegation that the
Selection Board did not respect the merit principle in the manner in which it
assessed the abilities and personal suitability of the candidates?
3.
Was it
reasonable for the Appeal Board to conclude that Mr. McGregor had not
demonstrated that there was a real likelihood that the merit principle was not
respected in the selection process?
STANDARD OF REVIEW
1) Review of the Appeal Board’s
Decision
[13]
There is
no dispute between the parties as to the appropriate standard of review to
apply to the Appeal Board’s decision. They both correctly identified that the
Appeal Board’s decisions on questions of law are reviewable on a standard of
correctness: Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86
at paragraph 7 (F.C.A.), Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 at
paragraph 17 (F.C.A.). The decision as to which party has the burden of proof
in the proceedings is a matter of law.
[14]
Conversely,
the standard of review to be applied to questions of mixed fact and law, such
as whether the Appeal Board’s conclusions are supported by the evidence, is
reasonableness: Chopra v. Canada (Attorney General), 2005 FCA 374 at
paragraph 3, Davies v. Canada (Attorney General), 2005 FCA 41 at
paragraph 23.
2) Review of von Finckenstein
J.’s Decision
[15]
Standards
of appellate review are guided by the nature of the questions at issue. Questions
of law are generally reviewable on a standard of correctness: Housen v.
Nikolaisen, [2002] 2 S.C.R. 235 at paragraph 8 (“Housen”). Findings
of fact are reviewed against a standard of palpable and overriding error: Housen
at paragraph 10. The standard of palpable and overriding error also applies to
questions of mixed fact and law, unless the lower court judge made an
extricable error of law, in which case a standard of correctness applies: Housen
at paragraph 37.
ANALYSIS
1) Burden of Proof
[16]
Mr.
McGregor submits that an appeal to the Appeal Board under section 21 of the
PSEA differs from other quasi-judicial appeals. He emphasizes that the process
called for under subsection 21(1) is an “inquiry.” In his view, this inquiry is
not aimed at protecting an appellant’s rights, but instead at ensuring that the
“merit principle,” which requires that the best persons possible will be found
for the positions, has been respected. Consequently, Mr. McGregor maintains
that the hiring department has the onus of proof. Only after the hiring department
has established a sufficient evidentiary framework to warrant a finding by the
Appeal Board that the merit principle has been respected, he says, will the
burden shift to the appellant to demonstrate that there was a real possibility
that the best candidates were not appointed.
[17]
I cannot
agree. In my view, the Appeal Board and Justice von Finckenstein were correct
to hold that the burden of proof lies with the appellant in an inquiry under
section 21 of the PSEA. Mr. McGregor has not satisfied me that the PSEA
mandates a departure from the usual course, in which the party raising an allegation
has the burden of proving it. This principle is described in Hodge M. Malek et
al., eds, Phipson on Evidence, 16th ed. (London: Sweet
& Maxwell, 2005) at paragraph 6-06 (“Phipson on Evidence”):
So far as the
persuasive burden is concerned, the burden of proof lies upon the party who
substantially asserts the affirmative of the issue. If, when all the evidence
is adduced by all parties, the party who has this burden has not discharged it,
the decision must be against him. It is an ancient rule founded on
considerations of good sense and should not be departed from without strong
reasons.
This rule is
adopted principally because it is just that he who invokes the aid of the law
should be the first to prove his case…
[18]
The
jurisprudence of this Court confirms that the appellant in a section 21
proceeding has the burden of proof. In Weibe v. Canada, [1992] 2 F.C.
592 at page 595 (F.C.A.) (“Weibe”), this Court clarified that
proceedings under section 21 of the PSEA are adversarial:
Proceedings under
section 21, though styled an “inquiry”, are very much adversarial in nature,
with the applicant and the employer each being on opposite sides of the
question and each generally being represented by persons experienced in this
specialized type of dispute.
[19]
More
specifically, this Court explained in Blagdon v. Canada (Public Service
Commission, Appeals Board), [1976] 1 F.C. 615 at page 618 (F.C.A.) (“Blagdon”),
that in a section 21 proceeding, the onus is on the appellant to satisfy the
Appeal Board that the merit principle was not followed by the selection board:
On such an appeal --
which, it should be noted, is not an appeal from the findings of a Selection
Board but rather an appeal against the appointment or proposed appointment of a
successful candidate -- the essential question for the Appeal Board is whether
the selection of the successful candidate has been made in accordance with the
merit principle. An unsuccessful candidate, appealing against the appointment
or proposed appointment of the successful candidate, is entitled to show, if he
can, reasons for thinking that the merit principle has not been honoured, and
in that context the applicant, on his appeal, was entitled to show, if he
could, that the Selection Board's opinion that he did not have a good safety
record was without foundation.
[20]
Likewise,
in Leckie v. Canada, [1993] 2 F.C. 473 at page 481 (F.C.A.) (“Leckie”),
Justice Décary elaborated that the appellant bears the burden of showing that
there is a “real possibility or likelihood” that the most meritorious person
was not selected:
In order to succeed
under section 21 in establishing that the merit principle had been offended,
the applicants had to convince the Appeal Board that the method of selection
chosen was “such that there could be some doubt as to its fitness to determine
the merit of candidates” i.e. as to its fitness to determine whether “the best
persons possible” were found. An appeal board's main duty being to satisfy
itself that the best persons possible were appointed, it goes without saying
that an appellant, before even embarking on a challenge to the method of
selection chosen, should at least allege (and eventually demonstrate) that
there was a real possibility or likelihood that the best persons possible were
not appointed.
[21]
Similarly,
in Kaczmar v. Canada (Revenue), [1999] F.C.J. No. 1189 at
paragraph 13 (F.C.T.D.), Justice Pelletier reiterated that a section 21 inquiry
is an adversarial proceeding, in which the appellant’s task is to persuade the
Appeal Board.
[22]
Mr.
McGregor submits that several cases in the Federal Court stand for the
proposition that the selection board, not the appellant, bears the burden of
proof in a section 21 appeal. I am not persuaded, however, that the cases on
which Mr. McGregor relies mandate a departure from the conclusions set out
above. In particular, Mr. McGregor points to the following passage in Field
v. Canada (Attorney General), [1995] F.C.J. No. 458 at paragraph 5
(F.C.T.D.) (“Field”) for the proposition that the selection board has
the initial onus of satisfying the Appeal Board that the merit principle was
respected:
In the present case,
there was an absence of any cogent evidence, either oral or documentary, in the
record to establish the manner in which the merit of the candidates was
assessed by the Selection Board on the qualification of personal suitability.
In the absence of an appropriate evidentiary framework, the Appeal Board could
not have properly determined that the merit principle was respected in the
assessment of the candidates on personal suitability. Furthermore, the Appeal
Board purported to place on the applicant the obligation to adduce evidence to
establish that her personal qualities “...should have been rated any
differently than the personal qualities of the selected candidate.” In doing
so, the Appeal Board improperly relieved the Selection Board of its onus of
establishing that the assessment of the candidates was conducted in accordance
with the merit principle.
[23]
Although
at first blush this passage appears to support Mr. McGregor’s position, a
careful reading of the entirety of McGillis J.’s Reasons in Field
suggests that the decision is not inconsistent with the decisions of this Court
in Blagdon and Leckie. Although Justice McGillis’s Reasons are
brief, and therefore do not explain in detail the procedure followed at the
Appeal Board hearing, it appears that at the hearing, the appellant presented
her case first and satisfied the Appeal Board “that the manner in which the
Selection Board assessed the personal suitability of the candidates breached
the merit principle” (Field at paragraph 2). Thus, it may be that in the
passage quoted above, the “onus” to which Justice McGillis was referring was a
tactical one. If she was saying that the burden of proof lay upon the selection
board, however, I do not agree.
[24]
Mr.
McGregor also relies on Canada (Attorney General) v. Jeethan, 2006 FC
135 (“Jeethan”) and Go v. Canada (Attorney General), 2004 FC 471
(“Go”), two decisions in which the Federal Court cited Field and
referred to an onus on the selection board to establish that the selection for
appointment was made in accordance with the merit principle. Reading these
decisions, it is not immediately clear whether Jeethan and Go
stand for the proposition that the selection board has the onus of proof, or
whether they merely acknowledge the fact that the selection board as a tactical
matter has an onus to disprove the appellant’s case. However, in light of this
Court’s decisions in such cases as Blagdon, Leckie and Weibe,
and the pragmatic considerations canvassed below, the latter interpretation
must be adopted.
[25]
Indeed, it
is difficult to imagine how a case could proceed effectively if the selection
board were charged with the burden of satisfying the Appeal Board that the
merit principle had been respected during the competition. To make its case,
the selection board would, without having heard any evidence of the appellant,
have to call all the evidence that could conceivably respond to the appellant’s
allegations as to how the merit principle was not observed. It would have to go
into extensive detail about each aspect of the process, calling all witnesses
with any potentially relevant information, and adducing all documents that
might shed some light on the procedure adopted and the decisions made by the
selection board. Such a process is not called for by the PSEA, nor would it be
feasible.
[26]
As
mentioned above, the party who invokes the aid of the law must be the first to
prove his case. While this often amounts to asserting an affirmative position,
this is not always the case. The party invoking the aid of the law may be
asserting a negative position, such as Mr. McGregor is doing in the present
case. This does not change the burden of proof. It still lies upon the
appellant. As stated in Phipson on Evidence at paragraph 6-06:
In deciding
which party asserts the affirmative, regard must be had to the substance of the
issue and not merely to its grammatical form; the latter the pleader can
frequently vary at will. Moreover, a negative allegation must not be confused
with the mere traverse of an affirmative one. The true meaning of the
rule is that where a given allegation, whether affirmative or negative, forms
an essential part of a party’s case, the proof of such allegation rests on him.
An alternative test, in this connection, is to strike out of the record the
particular allegation in question, the onus lying upon the party who would fail
if such a course were pursued.
[Emphasis added.]
[27]
For a
section 21 appeal to be feasible, the appellant must direct his evidence to the
particular elements of the selection process which he believes involved a
departure from the merit principle. As the strength of the appellant’s case
grows, the hiring department will develop what may be referred to as a
“tactical burden” to adduce evidence to refute the evidence on which the
appellant relies, for fear of an adverse ruling. However, this tactical burden
does not arise as a matter of law, but as a matter of common sense. Throughout,
the legal and evidential burden of convincing the Appeal Board that the
selection board failed to respect the merit principle rests with the appellant:
see John Sopinka et al., The Law of Evidence in Canada, 2d ed. (Toronto:
Butterworths, 1999) at §§ 3.47-3.48.
[28]
The fact
that inquiries under section 21 are designed to ensure the merit principle was
respected does not warrant a transfer of the onus from the appellant to the
respondent. Mr. McGregor fastens on a statement by this Court in Charest v. Attorney
General of Canada, [1973] F.C. 1217 at page 1221, wherein it stated that an
appeal under section 21 “is not to protect the appellant’s rights, it is to
prevent an appointment being made contrary to the merit principle.” According
to Mr. McGregor, this purpose warrants a shifting of the burden of proof to the
hiring department to establish that the merit principle was respected. I
disagree.
[29]
As
canvassed above, it is not feasible to have the selection board prove in each
case that the process employed followed the merit principle in all respects.
This factor remains whether or not section 21 has a broader public interest
purpose of ensuring that the merit principle is respected throughout the Public
Service. It is not in the public interest to divert extensive resources to
disprove allegations which cannot be substantiated. In any event, only unsuccessful
candidates are given standing to appeal under section 21. The appeal process
thus allows them to satisfy themselves that the selection process in which they
participated respected the merit principle. To suggest that there is a wider
public purpose to the appeal process that warrants a transfer of the burden of
proof to the hiring department, in my view, puts the matter too broadly.
[30]
To aid an
appellant in satisfying his burden of proof, section 26 of the Public
Service Employment Regulations, 2000, SOR/2000-80 (“PSER”) gives the
appellant extensive rights to disclosure of relevant information:
|
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 paragraph 3(a) to (c) from occurring.
(6)
Any information or document obtained under this section shall be used only
for purposes of the appeal.
|
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.
|
[31]
In Barton v. Canada (Attorney General), [1993] F.C.J. No. 746 at paragraph 14
(F.C.T.D.), Justice Rothstein recognized the importance of permitting the
appellant to have disclosure of all relevant information:
In such adversarial proceedings, parties are
entitled to be represented. Such representation must be effective, in the
sense that counsel or representative must have an opportunity of knowing what
evidence will be given by the witnesses that he or she will call. He or she
must have the opportunity of reviewing the evidence of the expert witness, of
organizing the evidence, of ensuring that the evidence is coherent, its best
features are emphasized and of preparing the witness for cross-examination.
These are the normal functions of counsel. Without access to all relevant
information, counsel or a representative cannot properly perform the task of
persuading the court or tribunal as to the merits of the client's case.
[Emphasis added.]
[32]
Thus I conclude that
the onus in the present case was upon Mr. McGregor to establish by evidence his
allegation that the merit principle was not followed. Section 26 of the
Regulations provided the means for Mr. McGregor to properly prepare his case
and he failed to do so.
2)
The
Appeal Board’s Review of the Evidence
[33]
The next
issue is whether the Appeal Board erred in its assessment of whether the merit
principle was respected by the Selection Board. Mr. McGregor attacks the
Selection Board’s assessment of both the knowledge exam, and the abilities and
personal suitability qualifications of the candidates. However, I see no
reasons to interfere with the Appeal Board’s decision on this basis.
a)
The
Knowledge Exam
[34]
With
respect to the knowledge exam, Mr. McGregor maintains that there were
inconsistencies between the marking of his exam and those of the successful
candidates. The exam consisted of nine questions, the marking of which was
divided amongst three members of the Selection Board. At the hearing before the
Appeal Board, the Department called as a witness only the Selection Board
member who was responsible for marking questions 8 and 9, Sylvain St-Laurent. Mr.
St-Laurent was unable to answer Mr. McGregor’s questions about the marking of
the other questions, leading Mr. McGregor to argue that the Selection Board had
failed to put forward sufficient evidence to establish that the marking of the
knowledge exam had been consistent amongst the candidates.
[35]
In
evaluating Mr. McGregor’s submission with respect to the knowledge exam, the
Appeal Board stressed that the onus was on Mr. McGregor to demonstrate that the
marking of the exams was faulty, for example, by calling other members of the
Selection Board as witnesses. He failed to do so, compelling the Appeal Board
to conclude that there was no basis on which to intervene in the Selection
Board’s decisions.
[36]
Justice
von Finckenstein found no error with the Appeal Board’s conclusion. His
analysis of this issue is set out at paragraph 13 of his Reasons:
[13] The Applicant
asked the testifying Board Member questions as to how the knowledge component
was marked (see quote in paragraph 7 above). Evidently, there was nothing in
the disclosed materials that could establish a likelihood or possibility that
the merit principle was not followed. An Applicant, of course, can and often
does make his case out of the mouth of the Selection Board Member. However,
here, the Member questioned turned out to be the one who did not mark questions
1 to 7 and thus, could not answer those questions. At this point the Applicant
seemingly gave up, instead of asking for an adjournment and questioning the
other Selection Board Members. He thus, failed to meet the onus of establishing
a ‘real possibility or likelihood’ that the merit principle had not been
respected as required by Leckie, supra.
[37]
I am
unable to find that von Finckenstein J. erred in reaching his conclusion. As
canvassed earlier, Mr. McGregor had the burden of establishing that there were
inconsistencies in the marking of the knowledge exam. He was therefore required
to adduce evidence sufficient to show a “real possibility or likelihood” that
the merit principle was not respected at this stage of the selection process. It
was not sufficient for Mr. McGregor to merely point to the failure of the
Selection Board to establish an evidentiary framework for its decision; he
first had to make his case.
[38]
Mr.
McGregor had ample opportunity to build his case by exercising his extensive
rights to disclosure under section 26 of the PSER. The evidentiary record
illustrates that Mr. McGregor asked for the disclosure of both documents and
information prior to the Appeal Board hearing, and it appears from the evidence
that the Department was very cooperative in dealing with these requests.
[39]
One of Mr. McGregor’s main grounds of attack in
relation to the knowledge exam was the fact that the Department called only Mr.
St-Laurent as a witness during the hearing; it did not call the other members
of the Selection Board responsible for marking other questions on the exam. However,
in an e-mail sent to the Department, Mr. McGregor specifically confirmed that
Mr. St-Laurent would be at the Appeal Board hearing to respond to questions and
allegations. Although it was open to Mr. McGregor to likewise request the
attendance of the other Selection Board members at the hearing, he did not do
so. Thus he cannot now complain about the failure of the Department to bring
forth additional witnesses.
[40]
In any event, if at the hearing Mr. McGregor
determined that he would not be able to make his case without the assistance of
testimony from the other members of the Selection Board, he could have asked
for an adjournment to allow him to question the additional witnesses.
[41]
Diane Portelance, Acting Director of Personnel
Administration, Human Resource Management for the Department explains these
concepts at paragraph 8 of her affidavit:
I was responsible for preparing the
disclosure package for Mr. McGregor in advance of the Appeal Board hearing.
Included in the disclosure package was a list with the names of all the board
members who participated in the two competitions. At no point did Mr. McGregor
request that any of the other board members be present at the Appeal Board
hearing apart from Mr. St-Laurent. In addition, when it became apparent at the
hearing that Mr. St-Laurent could not answer all of the questions posed by Mr.
McGregor to his satisfaction, neither Mr. McGregor nor his union representative
requested an adjournment so as to call additional witnesses or for any other
reason.
[42]
In these circumstances, I find no basis for
departing from Justice von Finckenstein’s conclusion on this issue.
b)
Assessment
of Abilities and Personal Suitability
[43]
Mr.
McGregor also attacks the Selection Board’s assessment of the abilities and
personal suitability characteristics of the candidates, a stage of the
selection process in which Mr. McGregor did not participate. The abilities and
personal suitability characteristics were assessed through a case study
exercise. Candidates were given two hours to review the material, which
included questions set out in four separate memos. They were then asked to make
a thirty minute presentation, followed by a question and answer period in which
Selection Board members questioned each candidate about the content of his or
her presentation. After the case study, the candidates participated in a
structured interview and the Selection Board conducted reference checks.
[44]
These
assessment methods were designed to test a number of different abilities and
personal suitability characteristics relevant to the positions. Selection Board
members took notes during the assessment. Afterwards, they compared their notes
and discussed each candidate’s demonstrated strengths and weaknesses in
relation to each of the assessment criteria. They then agreed upon a mark to
award using a rating scale.
[45]
According
to Mr. McGregor, it was insufficient for Mr. St-Laurent to fail to explain the
link between the assessment of each ability and the candidate’s answer with
respect to each memo, or the link between reference checks for the successful
candidates and how these affected the particular ability and personal
suitability ratings. Without this evidence, Mr. McGregor contends that it was
impossible for him to challenge the consistency or appropriateness of the marks
awarded to the successful candidates.
[46]
The Appeal
Board considered Mr. McGregor’s arguments on this issue and concluded that he
had not demonstrated a “real likelihood” that the merit principle was not
respected. Justice von Finckenstein concluded, however, that it was unnecessary
to consider Mr. McGregor’s arguments regarding the abilities and personal
suitability assessment. He noted that Mr. McGregor had not participated in this
stage of the selection process. In view of the fact that von Finckenstein J.
had concluded that there was no basis to interfere with the Appeal Board’s
decision regarding the knowledge exam, he held that it was unnecessary to
evaluate Mr. McGregor’s allegations regarding the other elements on which he
was not tested.
[47]
In my
view, von Finckenstein J. erred in holding that it was unnecessary for him to
consider Mr. McGregor’s arguments regarding the abilities and personal
suitability elements of the selection process. As this Court stated in Attorney
General of Canada v. Bozoian, [1983] 1 F.C. 63 at page 66 (F.C.A.) (“Bozoian”),
there are two ways to establish that a competition was not conducted in
accordance with the merit principle:
One conceivable approach
would be to show that the selected candidate could not possibly be the best
qualified of the candidates or did not meet the requirements for selection
whether in terms of personal qualifications or of eligibility for
consideration. Another approach might be to challenge the way the selection was
made so as to show that the selection process itself was illegal or, though
legal as a process, was not carried out in a manner calculated to identify the
most meritorious candidate.
[48]
Mr.
McGregor’s challenge regarding the assessment of the abilities and personal
suitability characteristics of the candidates is directed to the second approach
referred to in Bozoian, namely, that the selection process was not
carried out in a manner calculated to identify the most meritorious candidate. Justice
von Finckenstein erred in taking into consideration the fact that Mr. McGregor
failed the knowledge exam and therefore did not participate in the other
elements of the selection process. Having chosen to direct his appeal towards
impeaching the selection process, Mr. McGregor’s performance in the competition
was irrelevant. The selection of the successful candidates had to respect the
merit principle, regardless of how Mr. McGregor personally fared in the
competition.
[49]
Nevertheless,
I am satisfied that the Appeal Board’s conclusion that Mr. McGregor failed to
establish that the Selection Board did not respect the merit principle was
reasonable.
[50]
Mr.
McGregor essentially contests the use of a global assessment approach to assess
candidates, wherein the candidates’ responses to all four of the memos were
considered in their totality in determining whether the candidates demonstrated
the required abilities and personal suitability criteria. He maintains that the
Selection Board must, at a minimum, be able to explain which of the candidates’
responses were used to assess each ability, and how those responses were
evaluated to determine their correctness.
[51]
However,
the abilities and personal suitability characteristics required for the
positions being staffed included such things as the ability to manage a
multi-disciplinary human resources team, the ability to establish effective
partnerships and working relationships with key stakeholders, the ability to
effectively communicate orally and in writing, and behavioural flexibility. To
require the Selection Board to explain in minute detail the considerations that
played into the selection of a rating for a particular ability or personal
suitability characteristic would add a level of artificiality to the process.
As Justice Pratte stated in Blagdon at page 623,
The mere fact that an
Appeal Board could, had it sat as a Selection Board, have reached a conclusion
different from that reached by the Selection Board is not a sufficient ground
for allowing the appeal. It must be realized that the assessment of the
merit of various persons, which is the function of the Selection Board, cannot
be reduced to a mathematical function; it is, in many instances, a pure matter
of opinion. And, there is no reason why the opinion of an Appeal Board
should be preferred to that of a Selection Board.
[Emphasis added.]
[52]
In my
opinion, the Appeal Board applied these principles appropriately when rejecting
Mr. McGregor’s argument, as set out at paragraph 43 of its decision:
It was not necessary for
the selection board to justify how many marks could be attributed to each of
the selection tools used to assess a particular qualification. The whole point
of a global assessment is to allow the selection board to consider all of the
information supplied by the candidate. As noted above, assessment cannot be
reduced to a mathematical function.
3)
Conclusion
[53]
In
conclusion, Justice von Finckenstein did not err in holding that the onus in an
inquiry under section 21 of the PSEA falls to the appellant, not to the hiring
department. Similarly, I am not persuaded that the Appeal Board erred in
concluding that Mr. McGregor failed to demonstrate that the merit principle was
not respected in the selection process.
DISPOSITION
[54]
For the
foregoing reasons, I would dismiss the appeal with costs.
"J. Edgar Sexton"
"I
agree
A.M. Linden J.A."
I
agree
C. Michael Ryer J.A."
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