Date: 19981008
Docket: T-72-98
Between: Guy ORDINES, Guy BOLDUC and Deanno PIEDIMONTE
Applicants
| And: Attorney General of Canada |
Respondent
REASONS FOR ORDER and ORDER
DENAULT J.:
[1] The applicants seek judicial review of a decision of an Appeal Board concerning an appeal under section 21 of the Public Service Employment Act. Their appeal of the appointment without competition of Richard de Tilly to a security equipment maintenance officer (maintenance officer) position at the Regional Reception Centre in Ste-Anne-des-Plaines, Quebec, had been dismissed.
[2] The undisputed facts can be summarized as follows: after an assault which occurred in the course of his duties as a correctional officer in 1982, Richard de Tilly returned to duty but suffered another injury on duty in 1992. In accordance with departmental policy, Mr. de Tilly asked for and was given work within the institution. He volunteered to help the then incumbent of the maintenance officer position and was assigned certain duties related to this position from 1992 to 1995. He was appointed acting maintenance officer in December 1995. Following this acting appointment, the administration considered appointing him to the position of maintenance officer on an indeterminate basis and without a competition. The associate warden of the Regional Reception Centre established a Selection Board to assess Mr. de Tilly"s qualifications for this position. As they considered that there was no other candidate interested in and qualified for the position, the Selection Board decided that Mr. de Tilly had the necessary qualifications. On May 23, 1996, a notice of indeterminate appointment without competition was posted. The appellants appealed this indeterminate appointment under subsection 21(1.1) of the Act. As a result of this appeal, the Selection Board assessed the qualifications of the three applicants a posteriori , and concluded that Mr. de Tilly was still the most qualified to meet the requirements of the position as they appeared in the statement of qualifications. On December 12, 1997, the Appeal Board dismissed the applicants" appeal on the ground that the Selection Board had observed the merit principle during the selection process for the position of maintenance officer.
[3] It is important to recall certain principles drawn from the case law pertaining to sections 10 and 21 of the Public Service Employment Act concerning appointments based on merit to positions in the public service.
[4] The merit principle requires that the best qualified persons among those who are available be appointed to positions in the public service. (Attorney General of Canada v. Greaves et al., [1982] 1 F.C. 806.)
[5] A Selection Board must assess the various candidates on the basis of merit. The function of the Appeal Board is to conduct an inquiry in order to determine whether the selection has been made in a way consistent with the merit principle. (Blagdon v. Public Service Commission et al., [1976] 1 F.C. 615.)
[6] It is settled law that an assignment in combination with a selection process that gave an unfair advantage to the candidate assigned to the position compromises the merit principle. (Attorney General of Canada v. Pearce, [1989] 3 F.C. 272; McAuliffe v. Canada (Attorney General) (1997), 128 F.T.R. 39.)
[7] In the case at bar, the Appeal Board considered that the selection of Mr. de Tilly [TRANSLATION] ". . . had identified the person who, at the time of selection, best met each and every qualification required to perform the duties of the security equipment maintenance officer position". The Appeal Board in fact looked at each of the selection criteria again, analysed them, compared the candidate Mr. de Tilly to each of the applicants, and concluded that the merit principle had been respected by the Selection Board.
[8] The applicants argue that the Appeal Board committed an error in law justifying the intervention of this Court when it decided that the Selection Board had respected the merit principle in appointing Mr. de Tilly to the position of maintenance officer (a) without considering that an unfair selection process could compromise the merit principle, and (b) without deciding whether the selection process which led to the selection of Richard de Tilly gave him an unfair advantage.
[9] The applicants" argument is based on the fact that Mr. de Tilly benefited from an unfair advantage by acquiring work experience specific to the position of maintenance officer due to preferential treatment he received by the employer.
[10] The Appeal Board recognized that the employer gradually and then completely assigned Mr. de Tilly to the duties related to the maintenance of security equipment, but dismissed the argument that there was an unfair advantage which invalidated the result of the competition, based on R. v. St.-Hilaire et al. (an unreported decision dated October 18, 1983, A-824-82), in which Mr. Justice Pratte, writing for the Federal Court of Appeal, stated that: ". . . the result of a competition is not invalidated by the fact that the successful candidate in the competition achieved his/her special qualifications through preferential treatment by the employer which enabled him/her to acquire a given type of experience prior to the competition."
[11] Counsel for the applicants argues that the authority of this decision has been greatly limited by a decision of the Trial Division (Chopra et al. v. Canada (Minister of Health and Welfare) (1993), 69 F.T.R. 286) in which it was held that this proposition remains good authority only in the absence of a selection process which gives an unfair advantage to the candidate assigned to the position. He submits that in the case at bar, there was a selection process which gave an unfair advantage to Mr. de Tilly.
[12] I must make two preliminary remarks before discussing the merits of the issue: (1) insofar as the facts which are the basis for the very brief decision in St.-Hilaire are not stated, it is not clear whether the Trial Division was justified in limiting its authority in Chopra; (2) despite this limit, Mr. Justice Gibson applied St.-Hilaire in Chopra and held that the Appeal Board did not err in law on the facts of this case in failing to find a breach of the merit principle.
| [13] It must be emphasized, however, that St.-Hilaire no longer applies in light of Pearce, even despite Chopra, as the following statement is found in Pearce: |
| It seems to me that other circumstances taken together with an assignment may equally offend the merit principle. The merit principle requires the appointment of the candidate best qualified to fill a position. That is not necessarily the candidate best informed about it. [ More specifically,] . . . an assignment in combination with a selection process that gave an unfair advantage to the candidate assigned to the position could compromise application of the merit principle. (my emphasis) |
[14] The recent case law, namely McAuliffe, reiterates this statement from Pearce and adds the following:
| Thus, the merit principle may be compromised where a candidate in a selection process receives an unfair advantage due to his assignment to the position in question prior to a valid selection being made. Familiarity with the actual duties of a position may provide the candidates in place with an unfair advantage with the risk that a selection process may not result in a selection according to merit. (my emphasis) |
[15] The instant case involves a candidate who was the only person to hold the position of maintenance officer since 1992. Mr. de Tilly was first assigned certain duties related to this position from 1992 to 1995, he was appointed to the position in an acting capacity in December 1995, and he was appointed to the position of maintenance officer on an indeterminate basis without competition on May 23, 1996. It is precisely because of the experience and knowledge he acquired during this assignment since 1992 that Mr. de Tilly was so well qualified, as the statement of the qualifications1 required for the position specified certain experience, knowledge, abilities and skills which only Mr. de Tilly already possessed, because of his prior experience.
[16] Let us take the "experience" section as an example. One of the job factors under the heading of "experience" is [TRANSLATION] "experience establishing or maintaining an inventory system". The assessment of Mr. de Tilly indicates the following:
[TRANSLATION]
| The employee meets this requirement. Since the beginning of 1994, Mr. de Tilly has assisted in and performed the duties of the security equipment maintenance officer position. He gradually took on all of the duties of the position and held the position fully starting in January 1996 because of the numerous absences of the incumbent . . . who retired in April 1996. The duties of the security equipment maintenance officer require that this person maintain a rather accurate inventory system because of the risk poor control over the weapons, ammunition, gas, etc. would represent.2 |
On the other hand, the assessments of candidates Piedimonte, Ordines and Bolduc indicate not only that these employees do not meet this requirement, but that this is a direct result of the current duties of these employees:
| The current duties of [these three employees] do not involve establishing or maintaining an inventory system. A complete examination of [their] file[s] did not uncover any experience in this area in connection with [their] job[s] with the Correctional Service of Canada.3 |
Only Mr. de Tilly could have satisfactorily met this requirement.
[17] The same is true for other sections of required qualifications, including knowledge, the purpose of which is to evaluate the following requirement: [TRANSLATION] "knowledge of the inventory of security equipment according to the scale of issue approved by National Headquarters". Here, Mr. de Tilly earned a [TRANSLATION] "superior" rating for the following reasons:
[TRANSLATION]
| Mr. de Tilly must continually refer to the security equipment scale of issue to identify which types of equipment may be purchased or used by the correctional officers. From time to time, he must make recommendations to add equipment to or remove it from this scale by producing evaluation reports on the various equipment used by staff in general.4 |
It should be noted, however, that the three other candidates all received a [TRANSLATION] "satisfactory" rating for this requirement as well as the following comment:
[TRANSLATION]
| In the course of his work, [the candidate] does not have to work with the scale of issue for the security equipment inventory; however, he is familiar with and uses most of the authorized equipment. His knowledge in this area is limited.5 |
It is clear that candidates Piedimonte, Ordines and Bolduc could never have obtained a "superior" rating for this requirement because they never held the position of maintenance officer.
[18] These examples demonstrate that the selection process itself gave an advantage to the candidate who was the most familiar with the job in question in the instant case, and Pearce reminds us that an assignment in combination with a selection process that gives an unfair advantage to a particular candidate compromises the principle of selection based on merit.
[19] Furthermore, the statement by Dubé J. in McAuliffe, supra, applies under the circumstances because the instant case concerns a candidate who received an unfair advantage because he held the position of maintenance officer even before a valid selection process was begun. It was by holding this position prior to a valid selection that Mr. de Tilly was able to become proficient in the duties of the maintenance officer and, in so doing, was able to meet the selection requirements and come first in the group.
[20] As I am bound by Pearce and have been influenced by McAuliffe in the instant case, I must conclude that the actions of the Selection Board compromised the principle of selection according to merit and that the Appeal Board erred in failing to ascertain whether the assignment in combination with the selection process gave an unfair advantage to the candidate assigned to the position, thus compromising the principle in question.
[21] For the aforementioned reasons, the application for judicial review must be allowed.
O R D E R
THE COURT:
| - allows the application for judicial review; |
| - quashes the decision of the Appeal Board dated December 12, 1997; |
| - returns the matter to the Appeal Board for a decision on the basis of the instant reasons. |
PIERRE DENAULT
J.F.C.C.
Certified true translation
M. Iveson
FEDERAL COURT OF APPEAL
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-72-98
STYLE OF CAUSE: GUY ORDINES, GUY BOLDUC AND DEANNO PIEDIMONTE
- AND -
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: SEPTEMBER 16, 1998
REASONS FOR ORDER AND ORDER BY THE HONOURABLE MR. JUSTICE DENAULT
DATED: OCTOBER 8, 1998
APPEARANCES:
James G. Cameron For the applicants
Claude Morissette For the respondent
SOLICITORS OF RECORD:
Raven, Allen, Cameron
& Ballantyne
Ottawa, Ontario For the applicants
Morris Rosenberg
Deputy Attorney General
of Canada For the respondent
__________________
1 Applicants" record, p. 059.
2 Applicants" record, p. 065.
3 Applicants" record: assessment of Deanno Piedimonte, pp. 070-074; assessment of Guy Ordines, pp. 075-078; assessment of Guy Bolduc, p. 079-082.
4 Applicants" record, p. 066.
5 Applicants" record: assessment of Mr. Piedimonte, p. 071; assessment of Mr. Ordines, p. 076; assessment of Mr. Bolduc, p. 080.
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