Date: 19981102
Docket: T-2425-97
| IN THE MATTER OF an application to review and set aside, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, the Decision of Appeal Board Chairperson Hart rendered October 7, 1997, respecting appeals under s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSC File No.: 96-IMC-02602). |
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BETWEEN:
CATHERINE LOUISE BOUCHER and
KAREN McBRIDE
Applicants
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
McKEOWN, J.
[1] The applicants seek judicial review of a decision of the Public Service Commission Appeal Board rendered October 7, 1997, with respect to selections for appointment by a three-member Commission Selection Board in a closed competition for the position of Immigration Settlement Counsellor with the Department of Citizenship and Immigration Canada (the "Department"). In her decision, the Appeal Board Chairperson dismissed all of the fourteen allegations advanced on behalf of the applicants. The applicants submit that the Appeal Board erred in dismissing three of those original allegations.
[2] The issues are whether the Appeal Board respected the merit principle and whether it erroneously ignored certain evidence presented by the applicants. Before the Appeal Board, the applicants alleged that in ranking for appointment three candidates who failed the "knowledge" component of the selection process, the Selection Board, in effect, failed to test for knowledge, and thereby violated the merit principle. They also argued that the merit principle was similarly violated in the Selection Board"s weighting of the "knowledge" factor at only 10 %. The applicants submit that the Appeal Board erred in finding that there had been no violation of the merit principle on either of these grounds. They also submit that the Appeal Board erred in refusing to consider evidence which had not been before the Selection Board.
[3] In a Statement of Qualifications dated April 1996, the Department listed education, experience, knowledge, abilities and skills, personal suitability, official language proficiency, and reliability/security. Fifteen candidates submitted applications for the position. Nine, including the applicants, were found to have met the screening criteria of education and experience, and were accordingly invited to attend a written test, composed of seven questions, and an interview, composed of five questions.
[4] In addition to the written test and interview, the Selection Board looked at on-the-job performance as evidenced by reference checks, appraisals and the personal knowledge of the Selection Board members. The factors to be assessed in the competition were weighted as follows by the Selection Board: Knowledge - 10%; Ability - 40%; Personal Suitability - 60%.
[5] The Selection Board determined that two of the ability qualifications and all of those listed under personal suitability were critical, and accordingly candidates had to achieve a minimum score in these areas to qualify in the competition. The Department placed significance on ability and personal suitability because the Immigration Settlement Counsellor position involved dealing with very sensitive and high profile issues in the community. Poor decisions or inappropriate interactions by an Immigration Settlement Counsellor with clients or agencies could result in damaged relationships and negative media coverage. Furthermore, operational requirements dictated that duties be rotated among the staff in the office. Knowledge was only weighted at 10% of the overall score because, in the opinion of the Selection Board, the knowledge required to perform the duties effectively "could easily be learned on the job and there was a detailed manual available for new appointees."
[6] The Selection Board determined that five of the candidates in the competition met the qualifications for the position. Three of those selected had failed the knowledge factor. Four candidates, including the two appellants, were unsuccessful in the selection process. The applicant Ms. Boucher was found not to have met two of the critical personal suitability qualifications (sound judgment, firmness and persuasiveness, and tact and discretion). The applicant Ms. McBride failed to meet one of the critical abilities qualifications (ability to communicate effectively orally and in writing).
[7] There were many submissions made with respect to the standard of review applicable in this case. In my view, the standard with respect to findings of fact is at the high end of the spectrum--that is, such findings should be accorded considerable deference by the reviewing court. Conversely, findings with respect to errors of law are at the lower end of the spectrum and are to be treated less deferentially. However, in light of my findings, this is not a case where the standard of review is of great importance.
[8] There is a strong foundation in statute and precedent for appealing a Commission hiring decision on the ground that it violated the merit principle. The applicants cited Charest v. Attorney General of Canada, [1973] F.C. 1217 (C.A.), Cleary v. Public Service Appeal Board, [1973] F.C. 688 (C.A.), M. MacKintosh and Public Service Commission Appeal Board (September 19, 1990), Federal Court File A-459-89, as well as other cases to establish this foundation. The applicants rely on Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 (C.A.), and on Tiefenbrunner v. Canada (Attorney General) (November 10, 1992), Federal Court File A-915-91 (C.A.), for the proposition that candidates selected according to the merit principle must be those best able to perform all the duties specified in the competition notice. In particular, they rely on Laberge, supra in arguing that the "knowledge" requirement must be met by the candidates deemed qualified.
[9] As has been noted, the applicants submit that in ranking three candidates who failed the knowledge qualification, the Selection Board effectively ignored this requirement. However, this is not a case in which knowledge was ignored. The score for knowledge was included in the overall scores of all the candidates. Moreover, the Selection Board had decided in advance not to require a minimum score in this area. In this sense, the case before me is distinguished from MacKintosh, supra, in which a question was eliminated from the test which had already been administered, effectively enabling a candidate to stay in the running despite having failed on this question.
| [10] In Laberge, supra, Pratte J.A. stated at 143 , |
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| ... [t]he merit principle requires that the candidate be selected who, at the time of the competition, is best able to perform all the duties specified in the competition notice. That does not mean that a candidate cannot undergo the normal training period to become familiar with his new duties, which in the case at bar also included a training course given to other people in the same category already occupying the position. |
This exception envisioned by the Court of Appeal is applicable to the case before me, as the Selection Board noted that the necessary knowledge could be acquired on the job, and with reference to a detailed manual.
[11] Furthermore, as the respondent has pointed out, in Marinaki v. Attorney General of Canada (January 23, 1995), Federal court File T-768-94, McGillis J. held that despite the fact that some of the selected candidates had either failed or done poorly on the knowledge component, there had been no violation of the merit principle. This was because such candidates could be said to have demonstrated the requisite knowledge indirectly in another section of the test. In my view, the exception contemplated by the Court of Appeal in Laberge, supra, is equally valid.
[12] I note that s. 16 of the Act gives wide discretion to a Selection Board to use the selection tools "it considers necessary or desirable". In my view, this includes the reasonable assignment of the weight to be given to each particular factor evaluated.
On the evidence before the Appeal Board, it was open to the Selection Board to distinguish between critical and non-critical qualifications necessary for the position in question. The evidence showed that the minimum requirements, established in advance of the selection process, were applied equally to all candidates, and that the non-critical qualification of knowledge was factored into the global assessment of all candidates. In my view, the Selection Board"s inclusion of the candidates" knowledge scores in their overall ranking was sufficient under the circumstances, and was consistent with the merit principle.
[13] With regard to the weighting of knowledge at 10%, in my view, it is for the Selection Board, which has the expertise in this area, to determine the relative importance assigned to departmental qualifications. I agree with the Appeal Board"s decision that there was no error by the Selection Board in making a global assessment, and that success in other areas can overcome the relative lack of knowledge exhibited by successful candidates. The same standard was applied to all candidates and therefore, there was no violation of the merit principle. Thus, the Appeal Board did not err in finding there had been no violation of the merit principle with regard to the knowledge factor.
[14] The applicants also allege that the Appeal Board failed to admit certain evidence which had not been before the Selection Board at the time of assessment. The applicants submit that they could not have provided this information to the Selection Board at that time, as they were unaware that the Selection Board would consider these factors in assessing their qualifications. The Appeal Board stated that it did not want to consider this new evidence, as this would amount substituting its views for those of the Selection Board.
[15] It was argued by the applicants that in keeping with the wording of s. 21 of the Act, the Appeal Board was to "conduct an inquiry". This meant that the Board was to have reference to more than just the evidence before the Selection Board. In the applicants" submission, the merit principle also required the Appeal Board to intervene by considering the applicants" documents and evidence, and the failure to do so amounted to a breach of the rules of natural justice.
[16] In the first instance, the applicant Ms. McBride did not make known to the Selection Board that she had a bad back and bifocals. Accordingly, she felt that she had not been properly judged when the Selection Board gave her a failing score on critical factor A 5 - "the ability to communicate effectively, orally and in writing," referring to the fact that she had been slumped over and had covered her mouth with her hand during her interview. On this issue, the Appeal Board stated,
| ... [i]f a candidate has a disability, illness or other factor which he or she wishes the selection board to take into account in its assessment, the onus is on the candidate to bring the matter to the attention of the selection board. In this case, the explanation by Ms. McBride that she wore bifocals and had a bad back was not information which was available to the Selection Board before it made its assessment. I am not persuaded that the Selection Board"s assessment of Ms. McBride in critical factor A 5 was unreasonable based on the information before it. |
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In my view, the Appeal Board did not err when it did not require the Selection Board to review the question of Ms. McBride"s communication skills under critical factor A 5 with the additional information relating to her bad back and bifocals. It was open to the Appeal Board to find, based on the evidence before it, that the Selection Board"s decision on this factor was reasonable. I also note that while the Appeal Board commented on the onus of candidates to bring relevant information regarding their health to the Selection Board, this did not amount to a shifting of the overall burden of proof in the matter before the Appeal Board.
[17] The applicant Ms. McBride also complained that the Appeal Board failed to accept a series of documents which, in her opinion, would demonstrate that Selection Board Chairperson Ann Norberg, was aware of Ms. McBride"s "exceptional oral and communication skills." At page 21 of it"s the Appeal Board"s decision, Chairperson Hart explained her position regarding these documents:
| ... I ruled that only those documents actually prepared by Ms. Norberg, or those of which Ms. Norberg could be shown to have been aware, could be accepted into evidence. It would be inappropriate for me to examine any of the other documents, as to do so would be to consider information which had not been before the Selection Board. This would amount to placing myself in the position of the Selection Board, which is not the role of an Appeal Board. |
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[18] The Appeal Board, as a quasi-judicial tribunal, is entitled to administer its own procedures and it was certainly open to it to come to the conclusions that it did in this matter. I note that the Appeal Board did admit into evidence a number of the documents at issue, specifically those which met the legal test of reliability and necessity. At page 21 of its decision the Appeal Board stated that it was "not been convinced that Ms. Norberg was of the opinion that Ms. McBride"s communication skills were "excellent"". Thus, it "[could] not conclude that the selection process was flawed because the Selection Board failed to consider the personal knowledge of Board member Ann Norberg." In my view, this finding was reasonable based on the evidence properly before the Appeal Board.
[19] Thirdly, the applicant Ms. Boucher submitted that she should have been able to adduce before the Appeal Board evidence intended to contradict some of the references relied on by the Selection Board. On this matter, Appeal Board Chairperson Hart noted the limits of her jurisdiction in reviewing Selection Board decisions, and went on, at page 24 of its decision, to assess the Selection Board"s conduct:
| The members of the Selection Board responded adequately to the allegation, and identified the sources of the comments from the reference checks. With respect to one of the incidents in question, Selection Board member Paula Quillian, and other staff members had been witnesses. The appellant had been made aware of the concerns which were raised as to the incidents in question, and was afforded the opportunity to respond at the time. |
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In Chairperson Hart"s estimation, the department had taken reasonable steps to ensure that the incidents which were described negatively were verified with a second reference. She concluded at page 24 that she was
| satisfied, based on the testimony of the Selection Board members that the Board had sufficient information before it to support the conclusions it reached...and that "[t]he information presented by the appellant to contradict the information provided by the referees was never before the Selection Board. |
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[20] In my view, there is no basis for disturbing the Appeal Board"s determination in this respect. I note that the applicant Ms. Boucher was afforded the opportunity to respond at the time the Selection Board was dealing with the matter. I agree that there is some ambiguity as to when this opportunity was given, but in my view, the record supports the respondent"s submission that this occurred during Ms. Bouchard"s interview with the Selection Board..
[21] I do not find any error by the Appeal Board in respect of their review of the decision of the Selection Board. Under the circumstances, my intervention in this matter is not warranted. The application for judicial review is dismissed.
William P. McKeown
JUDGE
OTTAWA, Ontario
November 2, 1998.
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