Date: 20040917
Docket: A-584-03
Citation: 2004 FCA 300
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
MAUREEN CARTY, SUSAN MARCHANT, JOSEPH DALRYMPLE,
BARRY McCURDY, BERT DANDY and ANGELA LIN
Respondents
and
DAVID McBEAN, NEIL WILLARD, GLEN NG and JENNIFER HARNUM
Respondents
Heard at Ottawa, Ontario, on August 31, 2004.
Judgment delivered at Ottawa, Ontario, on September 17, 2004.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: RICHARD C.J.
EVANS J.A.
Date: 20040917
Docket: A-584-03
Citation: 2004 FCA 300
CORAM: RICHARD C.J.
NOËL J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
MAUREEN CARTY, SUSAN MARCHANT, JOSEPH DALRYMPLE,
BARRY McCURDY, BERT DANDY and ANGELA LIN
Respondents
and
DAVID McBEAN, NEIL WILLARD, GLEN NG and JENNIFER HARNUM
Respondents
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from an Order of the Federal Court (2003 FC 1338), allowing the application for judicial review of a decision of the Public Service Commission Appeal Board (the Appeal Board) dated April 10, 2002. In evaluating the applications of candidates for a position within the Immigration and Refugee Board (the employer or the IRB), a global or "compensatory" approach was used by the Selection Board to assess the qualifications established and advertised by the employer for a closed competition.
[2] On appeal from the decision of the Selection Board, the Appeal Board maintained the Selection Board's assessment of the candidates on the basis that the global approach did respect the merit principle in the circumstances of this competition. The Appeal Board's decision was set aside by the Federal Court, and the present appeal ensued.
[3] This appeal was heard together with an appeal from a second decision by the applications Judge rendered on the same day (Attorney General of Canada v. James Mercer et al., 2003 FC 1344) in which she set aside the decision of another Appeal Board by adopting the reasons which she gave in the present matter. Because there are some differences in the underling facts, separate reasons are being issued to dispose of the two appeals. However, since the principal question in both cases is identical, the reasons for the disposition are essentially the same.
Facts
[4] In February 2001, the employer advertised Operations Service Manager positions for its office in Toronto, Ontario. Candidates who met Education and Experience prerequisites set out by the employer were then assessed against the following three qualifications for appointment advertised in the Statement of Qualifications (the Statement): Knowledge, Abilities and Personal Suitability.
[5] Under each of these three qualifications, several elements (which I will refer to as sub-factors) were advertised:
Knowledge: Knowledge of the mission, objectives and programs of the IRB
Knowledge of the relevant legislation, regulations, United Nations Conventions, and domestic and international trends related to immigration and refugees
Knowledge of operational policies and procedures related to the Convention Refugee Determination Division program
Knowledge of theories and practices in management
Abilities: Leadership
Management of Human and Financial Resources
Team Building
Thinking Skills
Service Orientation
Communication
Personal Suitability: Interpersonal relationships
Judgement
Initiative
Dependability
Flexibility
[6] Also required by the employer, and advertised on the Statement, was the fact that three of the Abilities sub-factors (Leadership, Team Building and Communication) were "non-compensatory", meaning that a failure in one or more of these sub-factors could not be compensated by high scores in one or more of the others. The Selection Board, the Appeal Board and the Federal Court Judge conducted their analysis on the basis that it was to be inferred from the "non-compensatory" designation of these three sub-factors that all the other sub-factors were compensatory, i.e., non-performance in one could be compensated by excellent performance in another.
[7] Pass marks were established by the Selection Board for each qualification and for each of the three non-compensatory sub-factors (60% or thereabout in all cases). However, no pass mark was established for the compensatory sub-factors. Rather, the Selection Board undertook a global assessment of these sub-factors under the respective qualifications of "Knowledge", "Abilities" and "Personal Suitability" and those who met the required percentage for each of these qualifications were considered to meet it.
[8] The respondents Carty, Marchant, Dalrymple, McCurdy, Dandy and Lin failed to meet the pass mark for one or more of the non-compensatory "Abilities" sub-factor. As a result, they were not given further consideration in the selection process. The other respondents met the minimum standard for each of the three non-compensatory sub-factors and the three qualifications. Accordingly, their names were placed on an eligibility list in order of merit.
[9] The unsuccessful respondents appealed to the Appeal Board arguing amongst other things that the global approach used by the Selection Board was inconsistent with the merit principle because it allowed the Selection Board to ignore some of the advertised sub-factors (reliance was placed on Nelson at al v. Canada (Attorney General) et al., [2001] 204 F.T.R. 287 and Boucher v. Attorney General of Canada, [2002] 252 N.R. 186 (C.A.) which was referred to in Nelson et al.).
[10] The Appeal Board rejected this argument. It said in the course of its reasons:
Turning to the final allegation, I am not persuaded that the Selection Board acted inappropriately in the assessment of the candidates' qualifications. At the outset of the selection process three qualifications were identified as non-compensatory, that is, candidates had to meet the minimum standard on each of those qualifications in order to be considered qualified for the position. Candidates therefore clearly understood from the outset that failure to obtain the minimum standard on leadership, team-building and communication would result in the Board's determination that they were not qualified for appointment to the Operations Service Manager position.
In my view, this differentiates the instant situation from that determined in Nelson [et al.] (supra). First of all, there is no question that the Selection Board has the obligation to assess all of the qualifications listed in the statement of qualifications. That the responsible manager specifically identified those qualifications which were considered mandatory (i.e. non compensatory) addressed, in my view the concerns raised by the Court in Nelson [et al.] (supra) as leadership, communication and team-building were identified as essential and distinct qualifications from those remaining on the statement of qualification. By identifying specific qualifications which candidates must possess and determining that candidates meet/do not meet the minimum standard for the position on the basis of their success on those three factors establishes the importance of those qualifications for the Operations Services Manager position. It seems logical, therefore, to assume that the remaining qualifications were not considered to be equally as critical to the position as they were not so identified. Consequently, in my opinion, it was appropriate for the Selection Board to assess the individual sub-factors on an aggregate basis under the main qualification headings of knowledge, abilities and personal suitability through the determination of an appropriate minimum standard for each of those three headings. As such the actions taken in the instant selection process can be differentiated from those outlined in the Nelson [et al.] judgment.
[11] Upon a judicial review application of this decision, the applications Judge took issue with the correctness of the Board's reasoning. Based on her reading of the case law, she concluded that each discrete form of qualification, whether compensatory or not, had to be assessed in order to be consistent with the merit principle and, as the approach used in this case could result in a compensatory sub-factor being ignored, it was inconsistent with the merit principle. She said at paragraph 14 of her reasons:
... it is theoretically possible that a candidate could score 0 in a given qualification and still succeed. Since that qualification was established by the IRB, even though identified as non-compensatory [sic], it is the obligation of the Selection Board to evaluate the qualification in some meaningful way. Although, it is certainly up to the Selection Board to give different weights to the different qualifications, it is not open to the Selection Board to ignore any of the qualifications. That was the finding in each of Boucher, supra and Nelson, supra. In Justice Muldoon's view, each discrete qualification must be evaluated. Inherent in the concept of evaluation is the establishment of some standard of measurement - a "pass mark" - for each qualification.
[12] At the conclusion of her reasons, she made clear that her disagreement with the approach used by the Selection Board was limited to a narrow point:
[16] The assessment carried out by the Selection Board was detailed and conscientiously completed. In my view, the only additional step required to comply with the legal requirements is to establish a threshold for each qualification. It is entirely in the hands of the Selection Board to carry out that step. In my view, a "pass mark" for an individual qualification (other than those that are non-compensatory) may be established, in the total discretion of the Selection Board.
[13] This is the decision now under appeal.
Question in Issue
[14] The question to be answered on appeal is whether the applications Judge erred in allowing the application for judicial review on the basis that the merit principle required the Selection Board to establish a "pass mark" for each sub-factor, even if compensatory, and to assess the candidates against that mark. This is a pure question of law to be assessed against a standard of correctness (Housen v. Nikolaisen, [2002] 25 C.R. 235 at 247).
Disposition
[15] Before addressing this issue, it is useful to recall two basic principles which govern hiring in the public service. The first is that appointments must be based on merit as determined by the Public Service Commission (see subsections 10(1) and 12(1) of the Public Service Employment Act, R.S., c.P-32, s. 1). In this context, merit means "that the best persons possible will be found "having regard to the nature of service to be performed"" (Nanda v. Public Service Commission, [1972] F.C. 277 at 297 per Jackett C.J.).
[16] This leads to the second governing principle which is that the definition of a position and the establishment of the qualifications for that position are the sole responsibility of the employer as it is the best judge of its needs (see for instance Laberge, supra at page 142; Brown v. Public Service Commission, [1975] F.C. 345 at 348 to 350 (C.A.); Canada v. Blashford, [1991] 2 F.C. 44 at 48 and 56 (C.A.)). This prerogative logically brings with it the right to determine which qualifications are essential and which, while useful or desirable, are not essential (see as to this Standards for Selection and Assessment published by the Public Service Commission at page 3, Joint Book of Authorities, Tab A-3).
[17] The applications Judge was of the view that some threshold had to be met for all forms of qualification, including those that are compensatory. Although it is common ground that each qualification and sub-factor was in fact considered by the Selection Board, the applications Judge was concerned that, in the absence of some minimum threshold being established, it was theoretically possible that a candidate could score 0 on a given sub-factor and still meet the pass mark for the relevant qualification (reasons, paragraph 14).
[18] This, according to her, could be construed either as an instruction by the employer to the Selection Board "to administer a competition to consider only some of the qualifications for the position" contrary to the principle set out in Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 (C.A.) (reasons, paragraph 15). Alternatively, the applications Judge reasoned that this approach allowed the Selection Board to decide on its own that some of the qualifications selected by the employer are optional, contrary to the principle set out in Nelson et al., supra, and Boucher, supra (reasons, paragraph 15 infine).
[19] In my respectful view, the three decisions on which the applications Judge based her conclusion do not have the effect which she attributed to them and do not address the issue which arises in the present appeal.
[20] In Laberge, supra, this Court held that the failure by a Selection Board to "assess the capacity of candidates to perform all the duties of the position to be filled" (page 141, 1st full paragraph) as identified by the employer (page 142, 2nd full paragraph) was in breach of the merit principle. One of the identified requirements was that the successful candidate "would have to be" very familiar with the Access to Information Act and the Privacy Act (page 139, 3rd full paragraph). The Court stated at page 142:
The Department concerned is of course responsible for defining positions and the qualifications they require. Here, the Department did this by describing the position of co-ordinator as including the duty of administering the Access to Information Act and the Privacy Act and as requiring a good knowledge of these two Acts. The question to be answered here is whether a Department which has determined the duties attached to a position can, in a competition held to fill that position, require a selection board responsible for administrating a competition to consider the abilities of various candidates in terms of only some of the position's requirement. This question must be of course be given a negative answer. Contrary to what the appeal board found, the function of a selection board is not merely to carry out the instructions of the Department concerned. The selection board is only a tool used by the Public Service Commission to carry out the duty imposed on it by section 10 of the Public Service Employment Act. The Department does not have the power to alter the obligations imposed on the Commission by section 10 of the Act. Neither the selection board nor the Commission is a menial of the various Departments.
[21] It is easy to see why the failure by a Selection Board to assess a qualification set out by the employer results in a breach of the merit principle as it necessarily follows that the most meritorious candidate may not have been selected. Instructions by the employer to ignore a qualification which it has itself identified as necessary for the position to be filled and which remains in effect at the time of the competition cannot of course change this result. This is the proposition for which Laberge stands.
[22] However, where an employer identifies a qualification by reference to sub-factors which it effectively designates as "compensatory", and a Selection Board evaluates this qualification according to an appropriate minimum standard as it did here, I fail to see how the merit principle can be said to have been breached only because a minimum "threshold" or "pass mark" was not assessed for each sub-factor.
[23] Sub-factors that are effectively designated as "compensatory" are by definition non-essential. Nevertheless, they remain relevant to the assessment of the candidates' merit as they are considered by the employer to be equivalent or comparable indicators of the qualification that is sought to be identified. Hence, excellence in one can compensate for deficiencies in another.It cannot be said that the compensatory sub-factors did not lend themselves to this designation.
[24] Since it is up to the employer to define the advertised positions and to determine the qualifications which they require, the employer can identify sub-factors that can be compensated by others. Hence, I fail to see how adding a "pass mark" or "threshold" requirement for these sub-factors can be of assistance in identifying the most meritorious candidate. Indeed, where an employer has made such a designation, the best candidate has to be the one who achieves in the aggregate the highest mark for the qualification, regardless of his or her score in any of the individual sub-factors.
[25] The decision rendered by this Court in Boucher, supra, can also be distinguished when regard is had to the compensatory nature of the sub-factors in the present case. In Boucher, the Court was confronted with a failure by the Selection Board to assess an advertised qualification (as opposed to a sub-factor) which was understood to be mandatory. The Court stated at paragraph [8]:
... we conclude that such a failure amounted to an error of law on the part of the Selection Board. In effect, it eliminated Knowledge as a qualification notwithstanding the advertised requirements for the job. As the Court has held on other occasions, a Selection Board cannot change the advertised qualifications by eliminating one or more of them: to do so is unfair to those who might otherwise have applied but failed to do so because they recognized that they did not have all the advertised qualifications. See Bambrough v. Appeal Board, [1976] 2 F.C. 109; Attorney General v. Blashford et al, [1991] 2 F.C. 44.
[26] In Nelson, supra, the Trial Division of this Court (as it was then constituted) was confronted with a failure to assess sub-factors, but as noted by the Appeal Board in its reasons, the sub-factors in question had each been identified by the employer on the statement as being mandatory (Nelson, supra, paragraph 3). That is the context in which the Court concluded that [paragraph 26]:
It was not open to the Selection Board to eliminate qualifications during the selection process. ... Changing the advertised qualifications by eliminating one or more was unfair because potential candidates may have failed to apply because they recognized that they did not have all of the advertised qualifications.
[27] This issue does not arise in the present matter given that the three sub-factors which were advertised on the statement as mandatory were assessed as such and given the Board's unassailable conclusion that by implication, the remaining sub-factors had to be understood as being compensatory.
[28] For these reasons, I would allow the appeal, set aside the decision of the applications Judge and giving the decision which she ought to have rendered, I would dismiss the judicial review application against the decision of the Appeal Board. The appellant should have its costs here and below.
"Marc Noël"
J.A.
"I agree.
J. Richard, C.J."
"I agree.
John M. Evans, J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Appeal from an Order of the Federal Court dated November 14, 2003,
Court File No. T-552-02
DOCKET: A-584-03
STYLE OF CAUSE: Attorney General of Canada v. Maureen Carty et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 31, 2004
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Richard C.J.
Evans J.A.
DATED: September 17, 2004
APPEARANCES:
Mr. J. Sanderson Graham
Ms. Marie Crowley FOR THE APPELLANT
Mr. David Yazbeck FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPELLANT
Raven, Allen, Cameron, Ballantyne & Yazbeck, LLP
Ottawa, Ontario FOR THE RESPONDENTS
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