Date: 20060206
Docket: T-493-05
Citation: 2006 FC 135
Ottawa, Ontario, February 6th, 2006
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
LALITA JEETHAN and
THE PUBLIC SERVICE COMMISSION (APPEAL BOARD)
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Public Service Commission Appeal Board (the Appeal Board) dated February 14, 2005 allowing the respondent Ms. Jeethan's appeal against selections for appointment from closed competition 03-DUS-CB-CCID-31941 (4) to positions as Competition Law Officers (CO-02) with Industry Canada.
FACTS
The Competition
[2] In August 2003, the Department of Industry Canadaheld a closed competition pursuant to section 10 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA) for the appointment of successful candidates to positions as Competition Law Officers (CO-02). The Public Service Commission constituted selection boards whose function was to assess candidates. Under the assessment, forty-two candidates were found to be qualified, and their names were placed in order of merit on eligibility lists.
[3] The respondent Ms. Jeethan was not found to be a qualified candidate, for which reason she brought an appeal under section 21 of the PSEA against the selection board's proposed appointments.
The Appeal Decision
[4] In a 33-page decision dated February 14, 2005 the Appeal Board Chairperson J. R. Ojalammi, constituted under section 21 of the PSEA, concluded that the assessment of candidates in the closed competition violated the merit principle mandated by subsection 10(1) of the PSEA because:
i. some candidates were assessed by two-member selection boards and others by three-member boards so that they were assessed differently in violation of the merit principle; and
ii. in several instances the selection board was unable to explain the rationale underlying the marks awarded to candidates for answers given so that the Appeal Board could not be satisfied the selection was according to the merit principle;
The Appeal Board summarized its decision at pages 32-33 of its reasons:
[...] To summarize, I am allowing this appeal because some candidates were assessed by two member selection boards and others by three-member boards, because in a number of instances the selection board was unable to explain the rationale underlying the marks which had been awarded to some candidates for some answers, and because of the assessment of the answer which Ms. Jeethan gave to Question 4.
[5] By Notice of Application filed March 16, 2005 the applicant Attorney General of Canada seeks judicial review of the Appeal Board's decision.
RELEVANT LEGISLATION
[6] The relevant legislation is the Public Service Employment Act, R.S.C. 1985, c. P-33, the relevant excerpts of which are set out in Appendix A.
ISSUES
[7] The Attorney General submits that the Appeal Board erred in two findings:
1. that the selection process for the candidates was different and therefore not according to the merit principle because three candidates were assessed by three person selection boards and three candidates were assessed by two person selection boards; and
2. the Selection Board was not able to explain the reason for its assessment with respect to several questions and answers given by the appellant and for this reason the Appeal Board could not be satisfied that the selection was according to merit.
STANDARD OF REVIEW
[8] In Davies v. Canada (Attorney General) (2005), 330 N.R. 283 (F.C.A.), Chief Justice Richard of the Federal Court of Appeal held that the reasonableness standard was the standard against which to review decisions of the Appeal Board on questions relating to the selection process for a particular competition:
¶ 23 On the basis of a pragmatic and functional analysis, the appropriate standard of review of the Appeal Board's decision on questions relating to the selection process is reasonableness, whereas for questions relating to its jurisdiction, the appropriate standard is correctness. These were the standards relied on by the applications judge and he was correct in doing so.
In the application at bar, the issue before the Appeal Board was whether the selection board's selection process violated the merit principle. The parties agreed at the hearing that the reasonableness standard is the appropriate standard of review in the application at bar. The Court agrees.
ANALYSIS
Issue No. 1: Was the merit principle breached because some candidates were assessed by two-member selection boards and others by three-member boards?
[9] To respect the merit principle, a selection board must assess all candidates in the same manner, as stated by Mr. Justice Russell for this Court in Berger v. Canada (Attorney General) (2004), 249 F.T.R. 93 (F.C.) at paragraph 16:
¶ 16 Appointments made pursuant to s. 10(1) of the PSEA require that the best possible candidate be appointed. Proof of appointment according to merit requires a comparison of the qualifications of candidates. As such, candidates must be judged on the basis of relative merit. Relative merit must be determined using the same basis of assessment for each candidate (Greaves, supra).
[Footnotes omitted.]
[10] In Ali v. Canada(Attorney General) (2004), 255 F.T.R. 214 (F.C.), Mr. Justice Shore of this Court held at paragraphs 22 to 24 that while selection boards of different composition do not necessarily breach the merit principle, boards assessing candidates with different numbers of panellists do violate the merit principle:
¶ 22 ... Brothers does not say that changing the composition of a selection panel for the assessment of certain candidates never violates the merit principle. What it does say is that the merit principle is respected when the selection panel, or its assessors, minimize the subjectivity of the assessment where the assessment is not always conducted by the same persons.
¶ 23 There is no evidence in the present case that the selection panel member who was replaced communicated with her replacement to satisfy herself that their criteria for assessing the candidates were similar. Consequently, the selection panel violated the merit principle because Mr. Ali was not assessed in the same manner as the other three candidates.
¶ 24 Moreover, the fact that the selection panel was reduced from three to two members for Mr. Ali's interview is problematic. Mr. Ali did not have the benefit of the consideration and opinions of three members. For this reason, Mr. Ali was assessed differently from the other three candidates, and the merit principle was not respected.
[Emphasis added.]
[11] In the case at bar, there were six candidates for positions in Toronto. Three were assessed by three person selection boards, and three were assessed by two person selection boards. In describing how the three person selection board assessed the candidates, selection board member Bryenton testified:
... Mr. Bennet may have gone in with one idea, Stainsby with another idea, and then the synergy, the discussion, led to a third idea of what the mark should be...
In describing how the two person selection board assessed the candidates, selection board member Frederiksen testified:
... I would assign one value, and the other interviewer assigned a different value, and then we would try to reconcile and come to an agreement.
[12] The Appeal Board decided that the candidates were assessed differently depending on whether they were assessed by selection boards of two or three members and that this violated the merit principle. The Appeal Board stated at page 24 of its reasons:
[...] In the present case, most candidates were assessed by three member boards but some only had two member boards. Nonetheless, all the successful candidates were placed on the same eligibility list(s). In light of the conclusion in Ali, this assessment procedure does not respect the merit principle. Consequently, is [sic] not possible to conclude that the selection process and the eligibility list emanating from it respect the merit principle. Accordingly, for this reason, this appeal must be allowed notwithstanding that Ms. Jeethan was interviewed by a three member board.
At the hearing, the Attorney General conceded that the dynamics of decision making is different with a two person selection board than with a three person selection board. Based on the evidence, I am satisfied that the Appeal Board's conclusion with respect to this issue was reasonably open to it. Whether I agree or not is irrelevant. Accordingly, the Appeal Board's decision stands up to a somewhat probing examination and cannot be found unreasonable. See Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 per Iacobucci J. at paragraph 55.
[13] Moreover, the Appeal Board's decision followed and applied this Court's decision in Ali supra. The Appeal Board's decision cannot be found unreasonable for applying this jurisprudence.
[14] Since the Appeal Board decision has been upheld on this issue, this application should be dismissed. However, I will analyse the second issue in the alternative.
Issue No. 2: Was the merit principle breached because in a number of instances the selection board was unable to explain the rationale underlying the marks awarded to candidates?
[15] Cogent evidence in the record, either oral or documentary, is required for the selection board to meet its onus of establishing that its assessment respected the merit principle. See Field v. Canada (Attorney General) (1995), 93 F.T.R. 158 (T.D.) per McGillis J. at paragraph 5; and Gawlick v. Canada(Attorney General) (2004), 252 F.T.R. 124 (F.C.) per Russell J. at paragraphs 59 and 60. Madam Justice McGillis held in Field at paragraph 5:
... 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.
[16] The Appeal Board decided at pages 24 and 25 of its reasons:
[...] The second circumstance present in this case is the fact that there were several instances when the selection board members were unable to explain in their testimony why a candidate received marks for a particular answer or why a candidate did not receive marks for some part of their response on the basis of a part of the board's expected answer for the question.
When confronted with a situation where a board member was unable to respond to a question about marking, in several instances, the board member said that the assessments had been carried out a long time before the hearing and they could neither remember the reasoning nor could they reconstruct it from the assessment documentation. That a board member could not recall many months after the fact the details of why a candidate was or was not awarded marks for a particular aspect of their response is understandable. However, if it is not possible to reconstruct the rationale from, for example, the assessment documentation, then it cannot be assumed that the board's assessment is correct. A board has to establish that there is a rational basis for its conclusions for those conclusions to stand. Since this board was unable to explain the marking of a selection of answers given by various candidates and the fact that not many marks separated some candidates, I am not satisfied that the selections for appointment to [sic] emanating from this competition respect the merit principle. Accordingly, for this reason I must also allow the appeal.
[Emphasis added; footnotes omitted.]
[17] I am satisfied that the evidence is that on several occasions shown by the respondent to the Court, the Selection Board Chairperson was unable to explain or remember or reconstruct the rationale underlying the marks awarded to the respondent Jeethan. From the Selection Board's inability to adduce cogent evidence explaining the assessment rationale, the Appeal Board concluded that it could not be assumed that the Selection Board's assessment respected the merit principle or that it assessed all candidates in the same manner.
[18] The selection board must be able to explain to an Appeal Board the reason for its assessment based on the answers given by the appellant. The selection board must have a rationale why a particular answer was not scored in a particular way if that answer seems responsive to the question. This responsibility is not unfair or unusual, it is part of the job of a selection board. The selection board must satisfy the appeal board that the merit principle has been respected. In the case at bar, the Selection Board Chairman could not explain why the respondent Jeethan did not receive marks for particular answers, and used phrases such as "I am just going to have to take a wild guess at this" or "I don't know".
[19] Accordingly, the Appeal Board's decision that it was not satisfied that the Selection Board had assessed the candidates according to the merit principle was reasonably open to the Appeal Board based on the evidence that the Selection Board could not provide a rational basis for many of its assessments. For this reason, the Court must uphold the Appeal Board's decision on this issue and dismiss this application in the alternative the Court erred on the first issue.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review of the decision of the Appeal Board dated February 14th, 2005 is dismissed with costs.
"Michael A. Kelen"
APPENDIX A: Relevant Legislation
1. Public Service Employment Act, R.S.C. 1985, c. P-33
| Appointments to be based on merit
10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
[...]
Appeals
21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.
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Nominations au mérite
10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
[...]
Appels
21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
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