Canada (Attorney General) v. Pépin, 2006 FC 950

 

 

Date: 20060803

Docket: T-1272-05

Citation: 2006 FC 950

Ottawa, Ontario, August 3, 2006

Present: The Honourable Mr. Justice de Montigny

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

 

MICHEL PÉPIN

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This application for judicial review concerns a decision rendered on June 28, 2005, by an appeal board (the board) established by the Public Service Commission under section 21 of the Public Service Employment Act, R.S.C., 1985, c. P-33 (now repealed by the Public Service Modernization Act, S.C. 2003, c. 22, section 284). After studying the evidence and the submissions of the parties, the board allowed the respondent’s appeal and concluded that the tools used by the selection board did not allow for the complete assessment of one of the knowledge requirements under the statement of qualifications.

 

FACTS

[2]               In February 2004, the Department of Justice held two competitions to staff two Senior Practitioner (2003-JUS-MTL-CCID-158) positions and one Senior Practitioner‑Team Leader (2003‑JUS‑MTL-CCID-159) position with the Immigration Directorate at the Quebec Regional Office. Because the skills required for the two types of positions were similar in most respects, the selection board decided to use the same tools to assess the relative merits of the candidates. However, one additional question was added for the position of Team Leader to assess the management-related abilities and personal suitability of candidates for this position. Because the respondent did not apply for the position of Team Leader, it is not necessary to deal with this point.

 

[3]               The statement of qualifications prepared by the selection board for the Senior Practitioner competition specified several requirements concerning the experience, knowledge, personal suitability, abilities and skills of the candidates. More specifically, the knowledge required was described as follows:

- Comprehensive knowledge of the Immigration and Refugee Protection Act and pertinent jurisprudence (CO-1)
- Comprehensive knowledge of the rules of practice and procedure before the Federal Court (CO-2)
- Knowledge of administrative law, the Canadian Charter of Rights and Freedoms and pertinent jurisprudence (CO-3)
- Good knowledge of the  working of the organization, as well as of the priorities of Justice Canada and CIC (CO-4).

 

The above-mentioned qualifications are non-compensatory, meaning that a pass mark will be required for each of the “Knowledge” requirements.

 

 

[4]               The assessment of the candidates for the two Senior Practitioner positions began with a three‑hour written examination (simulation exercise), followed by an oral test, also based on a factual situation, lasting approximately one hour for each of the candidates. Each one of these assessments was worth 50 points.

 

[5]               The situational exercises submitted to the candidates for the written test concerned a constitutional challenge of section 11 of the Immigration and Refugee Protection Regulations, which provides that an immigrant must make an application for permanent residence to an office serving his or her country of origin. It was stated that a person residing in New Delhi, India, who wished to obtain a permanent resident visa for Canada had filed an application for judicial review asking that this section of the Regulations be declared to be of no force or effect on the ground that it discriminated against applicants from the Third World. In support of this submission, the applicant alleged that the waiting lists in heavily populated countries (generally third world countries) were considerably longer than those in Western countries.

 

[6]               Four questions were asked in connection with the situational exercise, but only the third and fourth questions were related to the first and second items of knowledge (CO‑1 and CO‑2). These questions read as follows:

3. List the pleadings and relevant argument you must present in order to defend the interests of the Canadian government in this matter. Even if you believe it unnecessary to begin argument on founded merit to close the present case, give the necessary argument in defence of the merit of the case.

 

4. Is time important in processing the file? How will you manage it?

 

 

[7]               The answer key for these questions shows that five points were awarded for factor CO-1 and three points for factor CO-2 in question 3. The suggested answers were as follows:

CO1 = 5 points: analysis of Regulation 11 and the IRPA:
Regulation 11: may apply from country of nationality or residence (at least 1 year) (3 points) - seemingly not discriminatory
- why: question of security and ease of document check (2 points for 1 reason)
- request decided on selection criteria: can it be successfully established (2 points)

 

CO2  = 3: judicial review (CO2 = 1 point); reply affidavits followed by a motivation record (CO2 = 2 points)

 

 

[8]               As far as question 4 is concerned, the answer key is laconic, to say the least. It was specified that two points were awarded for the second knowledge factor (CO-2), and the suggested answer was simply the Court Rules.

 

[9]               As far as the oral question is concerned, it is not necessary to deal with it at length, insofar as the answer key only awarded two points out of a total of 50 for knowledge factors CO‑1 and CO‑2 (one point each). In fact, I note that the appeal board did not render its decision on the basis of this issue, and the parties themselves barely referred to it.

 

[10]           Six candidates applied for the two competitions. Two were eliminated at the screening stage, while the names of the other four were placed on an eligibility list after they passed a written test, an oral test and a reference check. Of the top three candidates on the list, two were appointed to Senior Practitioner positions, and one accepted the position of Team Leader. The respondent, who had only applied for the position of Senior Practitioner, was ranked fourth and therefore was not appointed to any position. He had obtained a score of 79.5%, while the first three candidates respectively scored 85%, 81% and 80%.

 

[11]           The respondent appealed against the proposed appointments for the positions of Senior Practitioner under section 21 of the Public Service Employment Act. He essentially relied on two types of arguments. First of all, he alleged that when assessing the relative merits of the candidates, the selection board did not take into consideration the two compulsory skills required by the statement of qualifications, that is to say, “comprehensive knowledge of the Immigration and Refugee Protection Act and pertinent jurisprudence” and “comprehensive knowledge of the rules of practice and procedure before the Federal Court”. Secondly, he alleged that the selection board made unreasonable errors in grading his answers and those of the other candidates.

 

THE IMPUGNED DECISION

[12]           After extensively summarizing the respective submissions of the parties, the appeal board of the Public Service Commission allowed the respondent’s appeal in a decision dated June 28, 2005. The board concluded that the written examination (as well as the oral examination) did not allow an assessment of knowledge of the Immigration and Refugee Protection Act (IRPA) and related jurisprudence. After noting that the members of the selection board seemed to be “somewhat confused as to precisely how candidates were assessed on this sub-factor”, the appeal board added that it could not accept a comment made by a member of the selection board to the effect that candidates were presumed to have comprehensive knowledge of the IRPA and pertinent jurisprudence, considering their experience. Relying on Tiefenbrunner v. Canada (Attorney General), [1992] F.C.J. No. 1021 (QL), the appeal board was of the opinion that the selection board did not assess the relative merit of the candidates when it proceeded this way.

 

[13]           In answer to the Department’s submission that sub-factor CO-1 had indeed been assessed by the examinations, the board relied on Madracki v. Canada, [1986] F.C.J. No. 727 (F.C.A.) (QL) and Nelson v. Canada (Attorney General), 2001 FCT 437; [2001] F.C.J. No. 694 (QL) to conclude that the selection tools did not allow an assessment of the skill or skills listed in the statement of qualifications. The board stated the following:

However, the written test and the expected answer for question 3 concerned a section of the Immigration and Refugee Protection Regulations, and not the Immigration and Refugee Protection Act. Even I were to accept the argument that the Regulations reflect provisions of the Act, if I base myself on the expected answers it cannot be denied that neither question 3 of the written test nor question 1 of the oral test assess the jurisprudence pertinent to the IRPA, as specified in the statement of qualifications.

(Decision of the board as reproduced in the applicant’s record)

 

 

[14]           Finally, the board emphasized that the issue was not so much whether the tools used were appropriate to the work in question, which was not challenged, but rather to determine whether those tools really allowed the selection board to assess the candidates with respect to the qualifications required by the Department. It was on this point that the examinations were considered to have shortcomings.

 

[15]           However, without giving detailed reasons, the board dismissed the respondent’s argument to the effect that the selection board did not assess the comprehensive knowledge of the rules of practice and procedure before the Federal Court. The board simply stated it was not convinced that this submission was well founded on the preponderance of evidence. Likewise, the board did not accept the respondent’s other submissions to the effect that the selection board made several unreasonable errors in grading his answers and those of the other candidates and that the answer key had been altered after the examination so as to put him at a disadvantage.

 

[16]           The Attorney General of Canada instituted this application for judicial review, requesting that the decision of the appeal board be set aside and alleging that the selection process allowed knowledge of the IRPA and of the pertinent jurisprudence to be assessed. In answer, the respondent explained in his written submissions and at the hearing that the board was correct in concluding that the written and oral assessments did not allow assessment of the first knowledge requirement mentioned in the statement of qualifications but erred in dismissing his argument to the effect that the selection board did not assess the candidates on the basis of their comprehensive knowledge of the Federal Court’s rules of practice and procedure. However, he withdrew his other arguments concerning the grading of the answers and the answer key.

 

ISSUES

[17]           The issues raised in this case may be summarized as follows:

(a)     What is the applicable standard of review?

(b)     In answer to the applicant’s application for judicial review, may the respondent argue that the board erred by dismissing some of his submissions?

(c)     Did the appeal board err in concluding that the tools used by the selection board did not allow a full assessment of sub-factor CO-1 (comprehensive knowledge of the IRPA and of the pertinent jurisprudence)?

 

 

 

RELEVANT LEGISLATIVE PROVISIONS

[18]           Before proceeding with an analysis of these issues, it may be useful to briefly recap the main legislative provisions in force when this case began. First of all, section 8 of the Public Service Employment Act (PSEA) specifies that the Public Service Commission has the exclusive right to make any appointments within the Public Service. However, such nominations must respect the principle of merit, as expressed in section 10 of the Act:

[19]           As has been stated on many occasions, the principle of merit is not defined in the PSEA. It is therefore up to the courts to define the meaning, and they did so by deciding that “merit” means that the best person possible will be appointed to the position, having regard to the nature of the service to be performed (Nanda v. Public Service Commission, [1972] F.C. 277 (F.C.A.), at paragraph 34; Davies v. A.G. of Canada, 2005 FCA 41; [2005] F.C.J. No. 188 (QL) at paragraph 36).

 

[20]           Furthermore, it is up to the employer to define a position and to determine the skills required to hold such a position. This prerogative necessarily implies the right to determine the skills deemed to be essential to perform the work in question (Laberge v. Canada (A.G.), [1988] 2 F.C. 137 (F.C.A.); [1987] F.C.J. No. 1043 (QL), Canada (A.G.) v. Blashford, [1991] 2 F.C. 44 (F.C.A.), Mercer v. Canada (A.G.), 2004 FCA 301; [2004] F.C.J. No. 1537 (QL)). However, under section 12 of the PSEA, the Public Service Commission may establish selection standards by which candidates will be assessed as to how well they meet the qualifications determined by the department for that particular position. This review of the qualifications must take place before the closing of the competition and is the responsibility of a recourse officer.

 

[21]           The selection board must then decide on the means of assessing the candidates under subsection 16(1) of the PSEA:

 

 

[22]           Unsuccessful candidates may appeal the results of a closed competition under subsection 12(1) of the PSEA:

                                                           

[23]           It is important to underline the fact that the role of an appeal board is limited and must be restricted to reviewing the selection of the successful candidate or candidates. It is not up to such a board to rule on the skills required, as was mentioned by Mr. Justice Décary in Canada (A.G.) v. Viola, [1991] 1 F.C. 373 (F.C.A.); [1990] F.C.J. No. 1052 (QL). More recently, the Federal Court of Appeal referred back to this principle in the following terms (Davies v. A.G. of Canada, supra, at paragraph 42):

This Court has consistently upheld the principle that the role of an appeal board is narrowly confined. An appeal board has “no say with respect to the qualifications which an employer-department considers necessary or desirable.” The power to establish qualifications is “a function of management falling within the authority of a minister to manage his or her department under its enabling statute.” Canada (Attorney General) v. Perera (2000), 189 D.L.R. (4th) 519, [2000] F.C.J. No. 829 (C.A.) (QL), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 434.

 

 

[24]           Therefore, the decision rendered by the appeal board in this case must be examined in light of these statutory provisions and the accompanying case law.

 

ANALYSIS

 

(a) Standard of review

 

[25]           Counsel for the applicant submitted that the interpretation given by the appeal board to factor CO-1 was a question of law and accordingly should be subject to review on a standard of correctness. The respondent, meanwhile, submitted the applicable standard was reasonableness simpliciter, insofar as the impugned conclusions of the appeal board concern questions of mixed law and fact.

 

[26]            Having studied the relevant case law, I conclude that the respondent must succeed on this point. Mr. Chief Justice Richard, writing on behalf of the Federal Court of Appeal, made a detailed analysis of this issue in a recent judgment already mentioned in these reasons: Davies v. A.G. of Canada, supra. Using a pragmatic and functional approach, the Court came to the conclusion that the applicable standard was that of reasonableness simpliciter when determining if an appeal board erred in concluding whether or not a selection process respected the principle of merit.

 

[27]           The Federal Court of Appeal reiterated this position in a subsequent judgment. Noting that the application of the principle of merit to the specific facts of a case is a question of mixed fact and of law, Mr. Justice Evans also concluded that the standard of reasonableness simpliciter must apply (Chopra v. Canada (A.G.), 2005 FCA 374; [2005] F.C.J. No. 1854 (QL)). Finally, I also came to this conclusion in Kadouri v. Canada (A.G.), 2005 FC 522; [2005] F.C.J. No. 642 (QL). After conducting an analysis on the basis of a pragmatic and functional approach, I concluded as follows:

24 In view of the foregoing analysis, therefore, I have come to the conclusion that the applicable standard of review is that of the reasonable decision simpliciter.  In other words, the question the Court must ask is the following: was the decision by the Appeal Board supported by a reason capable of withstanding [translation] “careful” examination, even if this was not necessarily the only decision that could have been reached.

 

 

[28]           It is therefore by applying this intermediate standard of review that I will analyse the decision rendered by the appeal board. As has been mentioned by the Supreme Court on several occasions, this standard implies that there may be several good answers. Therefore, it is not a question of what the correct decision would have been, but rather if the impugned decision is rationally based on the applicable principles and the evidence.

 

(b) May the respondent make submissions to this Court that were dismissed by the appeal board?

 

[29]           The Attorney General did not object to the respondent’s making certain submissions to this Court that he made to the appeal board but were dismissed. In any event, this issue seems to me to have been definitively settled by the Federal Court of Appeal in GKO Engineering v. The Queen, 2001 FCA 73; [2001] F.C.J. No. 369 (QL). In this judgment, Mr. Justice Rothstein clearly ruled that a respondent in an application for judicial review may raise certain arguments to counter reasons that were unfavourable to him or her in the decision challenged by the applicant. As long as the respondent is not seeking a different disposition, there is no need for the respondent to bring his or her own application for judicial review. Here is what Rothstein J.A. wrote on this point:

[1] This is a motion by the applicant, GKO Engineering, to strike certain paragraphs from the respondent’s record that deal with issues not raised by the applicant in its notice of application for judicial review or in its application record. The applicant says that to raise such issues, the respondent should have filed her own application for judicial review which she has not done.

 

[2] What is at issue on a judicial review is the judgment of the lower Court or tribunal under review, not the reasons for judgment. An applicant for judicial review seeks to have the matter remitted for redetermination leading to a different disposition by the lower Court or tribunal.

 

[3] A respondent is normally satisfied with the disposition by the lower Court or tribunal. Accordingly, the respondent has no reason to seek judicial review of that judgment. However, the respondent may not agree with all the reasons of the lower Court or tribunal. Unless the respondent seeks a different disposition, however, the respondent has no basis to bring its own judicial review application. Where it does not seek to have the matter remitted for a different disposition, the appropriate procedure is for the respondent to raise, in its record on the applicant’s judicial review, those arguments it seeks to make in respect of those portions of the reasons with which it disagrees.

 

 

[30]           This reasoning was subsequently repeated in Rogerville v. Canada (A.G.), 2001 FCA 142; [2001] F.C.J. No. 692 (QL). Therefore, there is no doubt as far as I am concerned that the respondent could try to establish in his written submissions and at the hearing that the appeal board had erred in dismissing his arguments concerning the inadequate assessments to measure the second knowledge requirement in the statement of qualifications. Therefore, the respondent could submit this argument in connection with this application for judicial review.

 

c) Did the appeal board err in its evaluation of the assessment tools with regard to the statement of qualifications?

 

 

[31]           It is trite law that a selection board cannot ignore or change the requirements prescribed in the statement of qualifications adopted by the manager, in this case, the Department of Justice. This principle has been reiterated so often that it would be pointless for me to deal with it at any length. It is sufficient to cite the following excerpt of the judgment of Mr. Justice Muldoon in Nelson v. Canada (A.G.), 2001 FCT 437; [2001] F.C.J. No. 694 (QL):

26 . . . Additionally, a Selection Board errs in law when it does not require that candidates succeed on each of the advertized qualifications for a position. This amounts to a failure to assess a qualification. It is not open to a Selection Board to eliminate qualifications during the selection process. Finally, changing the advertized qualifications by eliminating one or more is unfair because potential candidates may have failed to apply because they recognized that they did not have all of the advertized qualifications.

See also: Boucher v. Canada (A.G.), [2000] F.C.J. No. 86 (QL) (paragraph 8); Madracki v. Canada, [1986] F.C.J. No. 727 (QL); Mercer v. Canada (A.G.), 2004 FCA 301.

 

 

[32]           In his written submissions and at the hearing, counsel for the Attorney General argued that the appeal board erred in requiring that the selection board assess knowledge requirement CO-1 by asking a question which called for reference to a specific judgment. This interpretation of the decision does not seem to me to properly reflect the content of the decision rendered by the appeal board, of which I summarized the arguments on this point at paragraphs 12 to 14 of these reasons.

 

[33]           Counsel for the applicant tried to show that question 3 of the written assessment allowed candidates’ knowledge of the law to be evaluated, insofar as it was necessary to know the objectives of the IRPA (set out in section 3 of the Act) and the requirements for obtaining permanent resident status (which are found in section 21) to establish that section 11 of the Regulations is not discriminatory in its purpose. In theory, this argument is enticing and can be defended. In fact, it is conceivable that knowledge of an Act may be demonstrated indirectly in answer to an issue concerning a constitutional challenge of this Act or one of its regulations. Likewise, I could understand how a statutory provision that has not been interpreted by the courts may require reference by analogy to the rules of interpretation, the context of the Act and case law concerning these related provisions.

 

[34]           Unfortunately, this is not the case here. Nothing in the answer key supports the applicant’s position. The suggested answers do not refer to any provision of the Act or to court decisions. It was even possible to score three of the five points by showing that section 11 of the Regulations was not prima facie discriminatory. In fact, there is a clear impression that the question required comprehensive knowledge of the Canadian Charter of Rights and Freedoms rather than of the IRPA.

 

[35]           Moreover, it is noteworthy that in their answers none of the candidates referred to a provision of the IRPA or to case law related to this Act. The candidates rather emphasized a Charter analysis of the challenged provision, which tends to confirm that the purpose of the question was more to assess knowledge of the of the Charter and, more specifically, section 15 of the Charter, rather than of the IRPA. However, I must note that the selection board only awarded six points out of one hundred for knowledge of the Act and its related case law, although it is expected that such knowledge must be, according to the statement of qualifications, “comprehensive”.

 

[36]           Considering all these factors, I am therefore not satisfied that the decision of the appeal board was unreasonable and that there is no avenue of analysis in the reasons that could reasonably allow the board to reach the conclusion it did. Considering this conclusion, there will be no need for me to rule on the respondent’s submissions concerning the second knowledge requirement in the statement of qualifications.

 

CONCLUSION

The application for judicial review is dismissed, and the decision of the appeal board is upheld, with costs to the respondent.

 

 

JUDGMENT

 

The Court renders the following decision:

            That the application for judicial review be dismissed, and the decision of the appeal board is upheld, with costs to the respondent.

 

 

 

                                                                                                          “Yves de Montigny”

Certified true translation

Michael Palles

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1272-05

 

STYLE OF CAUSE:                          Attorney General of Canada v. Michel Pépin

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      March 22, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          The Honourable Mr. Justice de Montigny

 

DATED:                                             August 3, 2006

 

 

APPEARANCES:

 

Michel Pépin	FOR THE RESPONDENT
Alain Préfontaine	FOR THE APPLICANT

 

SOLICITORS OF RECORD:

 

Michel Pépin	FOR THE RESPONDENT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE APPLICANT