Laplante v. Canada (Attorney General), 2003 FCT 653

Date: 20030526

Docket: T-2071-01

Citation: 2003 FCT 653

Ottawa, Ontario, this 26^th day of May, 2003

Present:           THE HONOURABLE MADAM JUSTICE SNIDER                                  

BETWEEN:

NADA LAPLANTE, WAJID HUSSAIN and

CATHERINE DUBREUIL-MELLON

                                                                                                                                                      Applicants

                                                                              - and -

ATTORNEY GENERAL OF CANADA, BRUCE WEIR,

VERONICA PARKER-WRIGHT, ROSE SPIRITO, FRED PREGL,

BRENDA SINGREIL, PATRICK WARNER, STEVE ROBERTSON,

GEOFFREY LAROSE, NATHALIE BELLEU, JANICE MACDONALD,

KEVIN YAMAMOTO, ROBERT BEGIN, PATRICIA SEABROOK,

AUDREY MANTHA, GERARD LEVESQUE, JOHN ROBERTSON,

DARLENE RICHARDSON, LESLEY MARTIN, SHEILA FULLBROOK

and GEOFFRY CHAPMAN

Respondents

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the interlocutory ruling of Cindy Read Hartman, Chairperson of the Appeal Board of the Public Service Commission of Canada (the "Chairperson"), dated October 18, 2001, denying the request of the Department of Public Works and Government Services Canada (the "Department") to concede the appeals. The appeals were brought by Nada Laplante, Wajid Hussain and Catherine Dubreuil-Mellon (the "Applicants") against selections for appointment to the positions of Supply Team Leader (Project) and Supply Team Leader (Procurement).

Background

[2]                 In January 2001, the Department held competitions for the positions of Supply Team Leader (Procurement) and Supply Team Leader (Project). Candidates could apply to one or both the competitions. Screened-in candidates were invited to write a general knowledge examination and a competition specific examination. Candidates who scored 70% on each examination were invited to an interview.

[3]                 Prior to the examinations, at least five candidates contacted Linda Fletcher, a member of the selection Board and requested information regarding the examinations. Ms. Fletcher orally provided these candidates with suggestions for areas of study. These suggestions were recorded in written form by Jim Allison, Ms. Laplante's supervisor, in a document referred to as the "seven point document". Ms. Laplante provided Mr. Allison with the study suggestions after she was contacted by a candidate who had received those suggestions from Ms. Fletcher. The information contained in the seven point document, which was dated the same day as the examination, was consistent with some of the examination questions.

[4]                 At the end of the process, two eligibility lists were issued, containing twenty-one names in total. The five candidates who received the information from Ms. Fletcher did not pass the knowledge assessment and their names were not placed on the eligibility list.

[5]                 The Applicants were unsuccessful in the competition. They brought appeals to the Appeal Board pursuant to subsection 21(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "Act") against the selections for appointment made in the competition.

[6]                 The individually-named Respondents were successful candidates in the job competition. With the exception of Lesley Martin, Sheila Fullbrook and Geoffrey Chapman, these Respondents participated in the hearing before the Chairperson. They tendered a signed document at the hearing stating that they had not been in possession of the seven point document.

[7]                 In a highly unusual move, at the outset of the hearing before the Chairperson, the Department indicated that it wished to concede the appeal. The Department indicated that it could not determine with any certainty the extent of the leakage of information by Ms. Fletcher or its impact on the competitions, but argued that the merit principle had been sufficiently undermined by the leak.

[8]                 The Chairperson relied on the decision of the Federal Court of Appeal in Caldwell v. Canada (Public Service Commission), [1978] F.C.J. No. 918 (C.A.) (QL) for the proposition that the perception of impropriety is not a sufficient basis on which to allow an appeal. The Chairperson was satisfied that the provision of the information did not actually preclude selection according to merit and denied the Department's request to concede the appeals on that basis. The Applicants have brought an application for judicial review of this decision.

Issues

[9]                 The Applicants raise the following issues:

          1.        Was the Chairperson bound to accept the Department's concession and conclude that the competition resulted in a violation of the merit principle?

2.        Did the Chairperson apply the wrong test, as well as a misplaced onus, in determining whether the selection process respected the merit principle?

           3.         Did the Chairperson make an erroneous finding of fact in a perverse or capricious manner and without regard to the material before her when she concluded that the disclosure of examination topics to some candidates, prior to the examination itself, had no impact on the outcome of the competition?

Analysis

Issue #1: Was the Chairperson bound to accept the Department's concession and conclude that the competition resulted in a violation of the merit principle?

[10]            The Applicants submit that, since the Department conceded the section 21 appeal at the beginning of the hearing, the Chairperson should not have heard further evidence and should have decided the case according to the Department's concession. The concession made by the Department went right to the heart of the matter and, in the view of the Applicants, was the only evidence before the tribunal.

[11]            The Applicants rely on Aylward v. McMaster University [1991] O.J. No. 230 (Gen. Div.) (QL), a case involving a charge of academic dishonesty by a professor of the university. At the commencement of the hearing, the professor advised the tribunal that he wished to withdraw his complaint. The tribunal proceeded with the hearing. In quashing the decision, the Ontario Court of Justice - General Division stated that:

The board's decision to proceed merged the functions of prosecutor and judge as was demonstrated by the board's enquiry about the professor's availability to give evidence. There was no prescribed procedural framework to enable the board to continue as a prosecutor or to embark on an investigative or inquisitorial proceeding. Therefore that decision was beyond its quasi-judicial role and its authority and as such was:

(a) patently unreasonable;

(b) constituted a structural defect in the proceeding giving rise to the reasonable apprehension that it would not act in an entirely impartial manner, and

(c) was in excess of jurisdiction and in violation of the rules of natural justice.

[12]            The Applicants submit that the situation in the present case is the same as that in Aylward, supra, because the Department conceded that the merit principle had been compromised and did not wish to call witnesses. Nevertheless, the Chairperson insisted that a witness from the Department be called and proceeded to pose a number of questions to her. By these actions, the Chairperson had taken on the prosecutory role and thereby committed an error.

[13]            I do not agree with the Applicants' characterization of the functions of the Chairperson under section 21. This section provides as follows:

[14]            I note that, under the applicable provision, the Chairperson is to conduct an "inquiry"; this is certainly more than a mere adjudication between parties. In addition, there are a number of other parties affected by the outcome of the Chairperson's decision, including the successful candidates, some of whom are party to this application for judicial review. In this case, the Chairperson properly identified her task as follows:

[...] despite the Department's wish to concede the appeal, for me to make a decision, I have to determine whether or not the merit principle was respected or not respected with respect to all of the appointments as opposed to whether the process was fair and transparent.

[15]            This is not a case, as in Aylward, supra, where the complainant withdrew his complaint. In that case, since the complaint was withdrawn, there was no basis or record on which to proceed. Further, the complaint was made against one individual student.

[16]            In the circumstances of this case, it was a proper exercise of jurisdiction for the Chairperson to complete her inquiry in order to determine whether the merit principle had been respected and to examine the basis on which the concession was made. Viewed in that light, the concession by the Department was that one of the factors that she took into account in reaching her determination that there was an irregularity, but that the irregularity had no impact on the outcome of the competition.

[17]            Contrary to the assertions of the Applicants, I do not view the actions of the Chairperson as "crossing a line". By asking that the Department present its witness and then posing questions to the witness, she did not "descend into the arena"; rather, she was attempting to complete the record with respect to what had transpired and did so without compromising her own impartiality.

[18]            This is a very unusual case. None of the case law referred to by counsel was directly relevant. For example, this is not a situation similar to that faced by Muldoon J. in Ladio v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 991 (T.D.) (QL) where he stated that "the consent of the parties" with no reasons was not sufficient for the Court to allow an application for judicial review. Here, the Department did give some reasons for its concession. However, I cannot conclude the converse; that, just because some reasons were given for the concession, the Chairperson should have "thrown in the towel".

[19]            For these reasons, I am of the view that the Chairperson did not err by continuing her examination in face of the Department's concession.

Issue #2: Did the Chairperson apply the wrong test, as well as a misplaced onus, in determining whether the selection process respected the merit principle?

[20]            In the Applicants' submission, the Chairperson erred by applying the wrong test for determining whether the merit principle had been respected and by requiring conclusive proof that a successful candidate had been made privy to the improperly disclosed examination information prior to the examinations in question. Had the Chairperson applied the correct test, as set out in Charest v. Canada (A.G.), [1973] F.C. 1217 (C.A.), she would have been compelled to conclude that there was real doubt regarding whether one or more of the successful candidates had access to the improperly disclosed information.

[21]            In the Applicants' submission, the Chairperson also erred by placing the onus on the Applicants to prove that the improper pre-examination disclosure affected the outcome of the competitions (Field v. Canada (A.G.), [1995] F.C.J. No. 458 (T.D.) (QL)).

[22]            For the following reasons, I am of the view that the Chairperson applied the correct test and onus in this case.

[23]            The Chairperson concluded that the merit principle was respected in this case for the following reasons:

I am convinced on the evidence that this competitive process involved an irregularity. However, I find that irregularity had no impact on the outcome of the competition. Linda Fletcher testified that approximately five candidates had approached her prior to the examinations and that she had given these persons information that did relate to certain questions found on the general knowledge and project management specific examinations. However, she also testified that none of these candidates passed the knowledge assessment and none of their names were placed on the eligibility list. The appellants could not, or would not, provide any evidence to contradict that.

My reading of Caldwell, is that the perception of impropriety is not a sufficient basis on which to allow an appeal. Therefore, because I am satisfied that the provision of the information did not actually preclude selection according to merit, the department's request to concede these appeals is denied.

[24]            The function of the Appeal Board on a section 21 appeal is to determine whether the merit principle was observed in the selection process (Caldwell, supra; Charest, supra). If the Appeal Board finds that a competition was held in circumstances where there is a question or doubt whether the selection was made according to merit then it must intervene (Charest, supra; Cyr v. Canada (A.G.), [2000] F.C.J. No. 1916 (T.D.) (QL)). However, if the Appeal Board is "satisfied that the result of a competition has not been influenced by an irregularity, it may not rely on that irregularity to allow the appeal" (Caldwell, supra at para. 4). In my view, the above excerpt indicates that the Chairperson was aware of this function and applied the correct test in her analysis of the evidence. In addition, there are several other references in the record where the Chairperson demonstrated her knowledge of her responsibilities.

[25]            My reading of the transcript and the Chairperson's decision as a whole does not indicate that the Chairperson required the Applicants to provide conclusive proof that a successful candidate had been made privy to the improperly disclosed information prior to the examination in question. Rather, the transcript and decision indicate that the Chairperson required the Applicants to provide some evidence that the merit principle was not respected, which is consistent with the obligation set out by the Federal Court of Appeal in Leckie v. The Queen, [1993] 2 F.C. 473 at 481 (C.A.):

In order to succeed under section 21 in establishing that the merit principle had been offended, the applicants had to convince the Appeal Board that the method of selection chosen was 'such that there could be some doubt as to its fitness to determine the merit of candidates' i.e. as to its fitness to determine whether 'the best persons possible' were found. An appeal board's main duty being to satisfy itself that the best persons possible were appointed, it goes without saying that an appellant, before even embarking on a challenge to the method of selection chosen, should at least allege (and eventually demonstrate) that there was a real possibility or likelihood that the best persons possible were not appointed. (Footnotes omitted).

[26]            In this case, the obligation on the Applicants would include providing some evidence that the successful candidates were placed on the eligibility list not because of their merit, but because they had access to the improperly disclosed information prior to the examination.

[27]            Therefore, in my view, the Chairperson did not err by applying the wrong test or placing the onus on the Applicants.

Issue #3: Did the Chairperson make a patently unreasonable finding of fact when she concluded that the disclosure of examination topics to some candidates, prior to the examination itself, had no impact on the outcome of the competition?

[28]            In the Applicants' submission, the Chairperson made a finding of fact in a perverse or capricious manner and without regarding to the material before her when she concluded, without any supporting evidence, that the improper pre-examination disclosure had no impact on the outcome of the competition.

[29]            The Applicants also submit that the Chairperson misapplied Caldwell, supra. In that case, the Appeal Board and the Federal Court of Appeal were satisfied on the evidence that none of the successful candidates had been allowed to use reference material which had been improperly made available to some of the unsuccessful candidates. In the present case, the successful candidates who participated at the Appeal Board hearing declined to address whether they had access to the improperly disclosed information prior to the examination. The Applicants submit that the only logical inference from the silence of these candidates is that one or more successful candidates did, in fact, have access to the improperly disclosed information prior to the examination.

[30]            The issue of whether the irregularity in the selection procedure was of no consequence is a pure question of fact (Lai v. Canada (A.G.), 2001 FCT 740 [2001] F.C.J. No. 1088 (QL)). This Court should not intervene in the Chairperson's findings of fact unless those findings were made in a perverse or capricious manner or without regard to the material before the Chairperson (Lai, supra; Maassen v. Canada (A.G.), 2001 FCT 633, [2001] F.C.J. No. 961 (QL); Hains v. Canada (A.G.), 2001 FCT 861, [2001] F.C.J. No. 1238 (QL)).

[31]            In my view, the Chairperson's conclusion that the disclosure of the information prior to the written examination did not have an impact on the outcome of the competition was not perverse or capricious and was open to her based on the evidence before her.

[32]            Although the Department indicated at the hearing that it was "not in a position to demonstrate the extent of the leakage", it was the task of the Chairperson, and not the Department, to conclude whether the leakage of information compromised the merit principle.

[33]            In my view, it is significant that the seven point document was not prepared or circulated by the Department. Rather that document was prepared by Mr. Allison on the basis of information given to him by Ms. Laplante, one of the Applicants in this application for judicial review. It is also significant, in my view, that the seven point document is dated the same day that the exam was written. According to the Affidavit of Paul Tittley, Mr. Allison testified at the hearing that, although he always dates his documents on the day that he generates them, he generated the seven point document three days prior to the exam. As a result, it is unclear when this document was actually generated and when the information contained in this document was actually provided by Ms. Fletcher.

[34]            None of the five candidates who approached Ms. Fletcher and received the study suggestions from her were successful on the examination. In addition, as in Caldwell, supra, the evidence showed that none of the selected candidates had access to the seven point document. I do not agree with the Applicants' submission that, based on the silence of the individual Respondents, an inference should be drawn that, prior to the examination, those individuals were told the improperly disclosed information. Ms. Fletcher, the original source of the information, testified at the hearing that she provided this information to several people and could specifically recall five individuals who had approached her for study advice. The Applicants submit that there was no information before the Appeal Board regarding the extent to which those five candidates had shared the information with others. However, part of the reason for the absence of this evidence was Ms. Laplante's refusal to identify the candidate who contacted her in order to share the information from Ms. Fletcher. There was no compelling evidence that the information was disseminated more widely than to those five candidates who had contacted Ms. Fletcher.

[35]            Moreover, Ms. Fletcher testified that she provided only general information to the candidates who had approached her and did not discuss her general suggestions in detail with any of the candidates. In response to questions by Bruce Weir, one of the successful candidates, Ms. Fletcher agreed that the study areas identified by her were "all areas that are well within the knowledge of anybody who works in... Public Works... in project management or works in the federal government."

[36]            In my view, based on:

•           the uncertainty surrounding the creation date of the seven point document;

•           the fact that the seven point document was not created by the Department;

•           the lack of evidence that the study tips were disseminated to the successful candidates;

•           the evidence that the candidates who received the information from Ms. Fletcher were not placed on the eligibility list; and

•           the very general nature of the information provided by Ms. Fletcher

It was not patently unreasonable for the Chairperson to find that the outcome of the competition was not influenced by the improper disclosure and consequently conclude that the merit principle was observed in the selection process.

Conclusion

[37]            For the reasons set out above, I am of the view that this application should not succeed.

ORDER

THIS COURT ORDERS THAT:

This application for judicial review is dismissed.

   "Judith A. Snider"     

JUDGE             

                               FEDERAL COURT OF CANADA

TRIAL DIVISION

Date: 20030526

Docket: T-2071-01

BETWEEN:

Nada Laplante, Wajid Hussain and

Catherine Dubreuil-mellon

                                                                                     Applicants

- and -

Attorney General of Canada, Bruce Weir,

Veronica Parker-wright, Rose Spirito, Fred Pregl,

Brenda Singreil, Patrick Warner, Steve Robertson,

Geoffrey Larose, Nathalie Belleu, Janice Macdonald,

Kevin Yamamoto, Robert Begin, Patricia Seabrook,

Audrey Mantha, Gerard Levesque, John Robertson,

Darlene Richardson, Lesley Martin, Sheila Fullbrook And Geoffry Chapman

                                                                              Respondents

REASONS FOR ORDER

AND ORDER

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             T-2071-01

STYLE OF CAUSE:                           NADA LAPLANTE ET AL. v. THE ATTORNEY       GENERAL OF CANADA ET AL.

PLACE OF HEARING:                     OTTAWA, ONTARIO

DATE OF HEARING:                       MAY 12, 2003

REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE SNIDER

DATED:                                                MAY 26, 2003

APPEARANCES:

DOUGALD BROWN                                                                  FOR APPLICANTS

JOHN WESTDALL                                                                      FOR RESPONDENT ROSE SPIRITO

PATRICK WARNER                                                                  FOR HIMSELF

BRUCE WEIR                                                                               FOR HIMSELF

SANDY GRAHAM                                                                       ATTORNEY GENERAL OF CANADA

SOLICITORS OF RECORD:

NELLIGAN O'BRIEN PAYNE LLP FOR APPLICANTS

OTTAWA ONTARIO

SEVIGNY LAW OFFICE                                                            FOR RESPONDENT ROSE

OTTAWA, ONTARIO                                                                 SPIRITO

MORRIS ROSENBERG                                                              FOR RESPONDENT

ATTORNEY GENERAL OF CANADA                                    ATTORNEY GENERAL OF

DEPARTMENT OF JUSTICE                                                    CANADA

OTTAWA, ONTARIO