Lalonde v. Canada (Attorney General), 2003 FCT 678

Date: 20030530

Docket: T-2007-01

Neutral citation: 2003 FCT 678

BETWEEN:

                                                                 JAMES LALONDE

                                                                                                                                                       Applicant

                                                                                 and

                                           THE ATTORNEY GENERAL OF CANADA,

                         GERALD LANDRY, E. THOMPSON, CARLS E. MESTIDOR,

                                FRANK MAHEUX, JOHN BOURGUIGNON, MA DAR,

                                  BWAKTA C. CHILANGWA, FRANK EICKEMEYER

                                          JEFF LIVESEY and VESEVOLOD ANDREEV

                                                                                                                                               Respondents

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons follow the hearing of an application for judicial review of a decision of Gaston Carbonneau, Chairman of a Public Service Commission of Canada Appeal Board (the "Appeal Board") made pursuant to section 21 of the Public Service Employment Act^[1] (the "Act") wherein the Appeal Board rejected the appeal of the Applicant following the application of corrective measures directed by the Public Service Commission in relation to a closed competition within the Public Service of Canada. The decision under review is dated the 9^th of October, 2001.

[2]                 The Applicant was one of three appellants from the outcome of the closed competition following the application of corrective measures.

[3]                 One of the other appellants, John Bourguignon, also sought judicial review of the decision here under review^[2]. The two applications for judicial review were scheduled to be heard sequentially before me at Ottawa on the 28^th of April, 2003. In fact, by agreement of counsel, the two applications were heard together. Separate reasons will issue with respect to the application of John Bourguignon.

BACKGROUND

[4]                 In February 2000, Health Canada initiated a closed competition to staff Junior Informatics Analyst positions within the Information Management Services Directorate of the Information, Analysis and Connectivity Branch of the Department in the National Capital Region. Seventy-nine (79) applications were received. Eight (8) were not within the area of selection. The competition consisted of three (3) elements, a written exam which assessed knowledge requirements, an interview element which was conducted by two (2) different Selection Boards and which was made up of five (5) questions to assess the candidates' abilities, and a reference check. All seventy-one (71) applicants attained a pass mark on the written exam and thus were carried forward into the second element of the competition, the interview element. Three (3) candidates did not attain the pass mark required at interview. One (1) of those three (3) candidates was the applicant herein. The sixty-eight (68) remaining candidates proceeded to the reference check phase of the competition which was designed to assess personal suitability. Four (4) candidates were unsuccessful on the reference check element of the competition.

[5]                 Of the sixty-four (64) remaining candidates, the sixty-three (63) highest ranking were placed on an Eligibility List which was created for a period of one (1) year. The Department intended to make forty (40) offers of appointment immediately after the competition and to use the Eligibility List as future vacancies occurred in the Directorate within the one (1) year for which the List remained current. Five (5) appeals, including one (1) by the Applicant herein, were filed pursuant to subsection 21(1) of the Act. That subsection reads as follows:

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.

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.

[6]                 Four (4) of the appeals, including that of the Applicant, were allowed in whole or in part. Of note for the purposes of this matter is the fact that Health Canada conceded that the Applicant herein should have received additional marks in relation to one (1) of the five (5) questions forming the substance of the interview portion of the competition. Also of note is the following conclusion drawn from paragraph 61 of the reasons for decision of the first Appeal Board:

During disclosure, after reviewing his [the Applicant's] answers to the interview questions, the Board members were willing to give him 3 more marks for question 4, (3 points for "client is satisfied", and 1 point for "visit", and he would then have obtained the 60% mark [the passing mark for the interview element of the competition].^[3]

[7]                 In the result, the Public Service Commission directed Health Canada to undertake corrective measures in relation to the competition. In a letter dated the 19^th of December, 2000, a representative of the Commission wrote:

The department will undertake the following corrective measures:

a)             inform all candidates of these allowed appeals and of the corrective measures to be implemented;

b)             develop a new tool to assess the Knowledge of DOS, Lotus Smart Suite and Corel WordPerfect 8;

c)             cancel Questions 5A and 5B; reassess answers to Question 7 accepting 2 possible answers; correct the mathematical error for candidate Sabbagh for Section 2 of Knowledge (total 8 marks and not 9); review answers to Question 10B giving 1 point to candidates who answered (d);

d)             the two boards will meet to review all candidates' answers to the 5 interview questions (see paragraph 52 of the appeal board decision for details) and to ensure that answers are considered in a consistent manner and that consensus is reached;

e)             conduct a reference check for appellant Lalonde with the same person who responded to the original one that was destroyed;

f)             conduct a reference check for appellant Robinson with a different person than the one who responded originally;

g)             issue a new eligibility list and grant appeal rights per subsection 21(4) of the PSEA;

h)             inform the undersigned, in writing, of the result of these corrective measures.^[4]

[8]                 Three (3) elements of the corrective measures directed are of particular significance for the purposes of this matter: first, while the Public Service Commission ordered a specific correction for one (1) particular candidate, it did not order a specific correction in relation to the marking of the Applicant's response to Question 4 on the interview portion of the competition; second, the Public Service Commission ordered a review of all candidates' answers to the five (5) interview questions which provided an opportunity for reconsideration of the marks awarded to the Applicant in respect of Question 4; and third, a reference check was ordered for the Applicant, whether or not the review of the marking of the interview questions warranted proceeding to a reference check for him.

[9]                 The corrective measures were implemented. Following implementation of the corrective measures, neither the Applicant nor John Bourguignon was among the candidates whose names were placed on an Eligibility List. In the result, an appeal to the Public Service Commission Appeal Board in relation to the implementation of the corrective measures, was taken by the Applicant, by John Bourguignon, and by another unsuccessful candidate. It is the decision on that appeal that is now before the Court.

THE DECISION UNDER REVIEW

[10]            All three (3) appeals from the implementation of the corrective measures were heard together. In its "REASONS FOR DECISION" , the Appeal Board introduced the subject matter before it in two (2) brief paragraphs. It then acknowledged the corrective measure quoted earlier in these reasons as element d), and the reference checks mandated by elements e) and f). It then turned directly to the appeal of the Applicant herein and disposed of that appeal in the following terms:

ALLEGATIONS OF APPELLANT JAMES LALONDE

1.             The appellant who was unsuccessful overall alleges that his answer to question 3 was not properly marked as he received no marks for saying that he would be polite. After the corrective measures were applied, he received points for saying that he would be patient but nothing for saying that he would be polite. In correcting the rating of other candidates, politeness and patience were recognized as appropriate answers.

DECISION

                It was open to the selection boards to allot 2 marks for the answer that referred either to one being polite, or calm or patient and not 2 marks for each of them. Exhibit D-12 filed by the Department makes it evident that the selection boards were consistent in their marking in that regard. Consequently, the score of 7 marks allotted to him for his answer to that question was proper.

The appellant alleges that he was not given marks for his answer to question 4 in which he said that he would call the client. Points were awarded to candidates who answered that "they would run over". Both were appropriate answers indicating fast service.

DECISION

                I am satisfied with the Departments response that he was properly marked in that respect.

In short he was properly assessed for all answers given raised by this appellant at the hearing.

                The appellant alleges that his oral communication was improperly rated because it was based on the incorrect correction. The rating of oral communication should be higher having regard to the correctness of the answer.

DECISION

                I must agree with the Department that this allegation has already been dealt with in paragraph 59 of the first Appeal Board decision. Therefore, it is not open to question.

                The appeal of James Lalonde is consequently dismissed.^[5]                                                                                                                 [footnote omitted]

[11]            The Appeal Board followed a similar pattern of stating an allegation followed by its decision in respect of that allegation in respect of John Bourguignon and the third appellant. Following its brief analysis with respect to the third appellant, in just over one (1) line, it concluded its decision by cumulatively dismissing the three (3) appeals before it.

THE STATUTORY FRAMEWORK

[12]            Subsection 10(1) of the Act establishes the "merit principle" as the principle governing appointments to and from within the Public Service. That subsection reads as follows:

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.

...

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.

...

[13]            Subsection 21(1) of the Act, quoted earlier in these reasons, provides a right of appeal to an Appeal Board, in favour of any unsuccessful candidate in a closed competition, such as the competition here at issue. The first appeal from the conduct of the competition here at issue, brought by James Lalonde and others, and referred to earlier in these reasons, was brought under the authority of subsection 21(1). The role of the Appeal Board on that appeal was to determine whether or not the closed competition at issue was conducted in accordance with the merit principle^[6]. The Appeal Board dealing with the first appeal determined that the merit principle had not been fully complied with in the conduct of the competition at issue.

[14]            In the result, subsection 21(3) of the Act became operative and the Public Service Commission became vested with the authority to prescribe corrective measures, as, on the facts of this matter, it did. Subsection 21(3) of the Act reads as follows:

(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.

...

(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.

...

[15]            Where, as here, one or more unsuccessful candidates following the implementation of prescribed corrective measures remains dissatisfied with the result, that unsuccessful candidate or those unsuccessful candidates may institute a further appeal to an Appeal Board but only on the ground "...that the measures so taken did not result in a selection for appointment according to merit". Such an appeal is instituted under the authority of subsection 21(4) of the Act. That subsection reads as follows:

(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.

(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.

It is to be noted that an appeal under subsection 21(4) of the Act relates only, on the facts of this matter, to the impact of implementation of the corrective measures on selection for appointment according to merit. Such an appeal does not extend to a revisiting of the impact of the original selection process.   

[16]            Finally, subsection 21(5) of the Act provides a limitation on the application of the merit principle and of the appeal rights just described in limited circumstances not applicable to the facts of this matter.

THE ISSUES

[17]            While not described in the following terms in the Memorandum of Fact and Law filed on behalf of the Applicant, I am satisfied that the issues before the Court can be briefly summarized as follows: first, what is the appropriate standard of judicial review of the decision here under consideration; and secondly, against the appropriate standard of judicial review, did the Appeal Board make any reviewable error in arriving at the decision that it did.

ANALYSIS

           a)         Standard of Review

[18]            It was not in dispute before me that, on a question of law, the standard of review of a decision of an Appeal Board is correctness. In Boucher v. Canada (Attorney General)^[7], Justice Strayer, for the Court, wrote at paragraphs [7]:

Turning to the first issue, that of the treatment accorded to the Knowledge factor by the Selection Board, we are of the view that this involves an issue of law as to the requirements of the merit principle and we therefore consider that the [Appeal Board's] decision to confirm that process equally involved a conclusion of law. We are not persuaded that the [Appeal Board] is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue. The Board is appointed ad hoc. We conclude in this respect that the standard of review which the Trial Division should have applied is that of correctness.

[19]            Where the issue under consideration involves neither a question of law nor of jurisdiction, greater deference is owed to the Appeal Board. In Hains v. Canada (Attorney General)^[8], Justice Heneghan wrote at paragraph [25]:

This Court will intervene if the decision under review is based on erroneous findings of fact that were made in a perverse or capricious manner or without regard for the evidence before the decision-maker; ...

When an appeal essentially raises an issue of law in the application of the merit principle, the applicable standard of review is correctness;                                                                                                                                                                 [citations omitted]

           b)         Reviewable error

[20]            Counsel for the Applicant urged that the Appeal Board erred in law in two respects: first, in carrying out its mandate against a standard of patent unreasonableness rather than reasonableness; and secondly, in failing to explicitly consider the concession by Health Canada before the first Appeal Board regarding the Applicant's entitlement to additional points for his response to oral interview question 4.

[21]            In support of his position that the Appeal Board applied an inappropriately high standard of review following implementation of corrective measures by the Department, counsel referred to the following brief paragraph from the Appeal Board's decision with respect to John Bourguignon:

It should be made clear that in light of the existing jurisprudence, it is not the role of an appeal board to substitute its opinion to that of a selection board unless that opinion is patently unreasonable.^[9]

[22]            Counsel urged that this statement was in error and that I should presume that the same error was carried forward into the assessment of this Applicant's appeal.

[23]            Even if I were to accept counsel's submission that I should assume that the standard referred to in the Appeal Board's consideration of John Bourguignon's appeal was applied as well to the Applicant's appeal, I would reject the submission that the result constituted a reviewable error. In Scarizzi v. Marinaki^[10], Justice Rothstein wrote:

It is clear that one of the functions of the Appeal Board is to ensure, as far as possible, that Selection Boards adhere to the merit principle in selecting candidates for positions from within the Public Service in accordance with s. 10 of the Act. However, it is not empowered to substitute its opinion with respect to a candidate's assessment or examination for that of the Selection Board. Only if a Selection Board forms an opinion that no reasonable person could form, may an Appeal Board interfere with the decision of the Selection Board.

[24]        I adopt the foregoing paragraph as my own. I find no basis on which to conclude that the Appeal Board reviewed the Applicant's appeal against the application of corrective measures according to a wrong standard.

[25]            I reach a similar conclusion with regard to the allegation of error in law for failure to provide three (3) additional marks as conceded before the first Appeal Board. Provision of three (3) additional marks in favour of the Applicant was, for whatever reason, not adopted as one of the corrective measures directed by the Public Service Commission. The decision here under review was directed towards a determination of whether the corrective measures ordered had been appropriately implemented. The Appeal Board responded to that issue. I find that it was under no obligation to look behind the corrective measures ordered.

[26]            Counsel urged that the Appeal Board further erred in a reviewable manner by denying the Applicant procedural fairness in failing to hear his submissions on the question of assessment of oral communications skills. I have carefully reviewed the Applicant's written submissions that were before the Appeal Board and the transcript of his oral submissions before the Appeal Board. Given the conclusion of the Appeal Board that the issue of assessment of the Applicant's oral communications skills "...had already been dealt with in paragraph 59 of the first Appeal Board decision", I cannot conclude that the Appeal Board made any reviewable error in refusing to provide the Applicant with an opportunity to make oral submissions regarding the assessment of an element of his skills that had already been finally determined.

[27]            Finally, counsel for the Applicant urged that the Appeal Board erred in a reviewable manner in determining that the application of corrective measures by the Selection Boards was not in breach of the merit principle. The Appeal Board's determinations regarding the allegations of error by the Selection Boards in applying the corrective measures in respect of the Applicant are briefly stated, almost to a fault. That being said, while a more fulsome analysis and justification of its conclusions by the Appeal Board would have been desirable and might have allowed for final settlement of the Applicant's concerns without the necessity of this appeal, once again, I can only conclude that the Appeal Board made no reviewable error in this regard.

CONCLUSION

[28]            Based upon the foregoing analysis, this application for judicial review will be dismissed. There will be no order as to costs.

_____________________________

                  J.F.C.C.

Ottawa, Ontario

May 30, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2007-01

STYLE OF CAUSE: JAMES LALONDE v. THE ATTORNEY GENERAL OF CANADA,GERALD LANDRY, E. THOMPSON, CARLS E. MESTIDOR,FRANK MAHEUX, JOHN BOURGUIGNON, MA DAR,BWAKTA C. CHILANGWA, FRANK EICKEMEYER, JEFF LIVESEY and VESEVOLOD ANDREEV

PLACE OF HEARING:                                   Ottawa, Ontario

DATE OF HEARING:                                     April 28, 2003

REASONS FOR ORDER:                           GIBSON J.

DATED:                      May 30, 2003

APPEARANCES:

Dougald Brown                                                    FOR APPLICANT

J. Sanderson Graham                                            FOR RESPONDENT

SOLICITORS OF RECORD:

Nelligan O'Brien Payne LLP                                             FOR APPLICANT

Lawyers/Patent & Trade-Marks Agents

Ottawa, Ontario

Mr. Morris Rosenberg                                                     FOR RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario