Mercer v. Canada (Attorney General), 2003 FC 1344

                                                                                                                               Date: 20031114

                                                                                                                            Docket: T-943-02

                                                                                                                  Citation: 2003 FC 1344

OTTAWA, ONTARIO, FRIDAY, THIS 14^TH DAY OF NOVEMBER, 2003

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                                      JAMES MERCER AND LINDA WILCOX

                                                                                                                                         Applicants

                                                                        - and -

                       ATTORNEY GENERAL OF CANADA, ANNETTE PEACH

                                                and CATHY GILLES-BARRON

                                                                                                                                  Respondents

                                       REASONS FOR ORDER AND ORDER

SNIDER J.

[1]         In 2001, Human Resources Development Canada ("HRDC") advertised a competition to fill the positions of Investigation and Control Officer (PM-02) in Harbour Grace, Newfoundland. The Applicants are federal public servants who applied unsuccessfully for the advertised positions. The Selection Board for the competition carried out its assessment of the candidates on the basis that a candidate was not required to "pass" each of the job qualifications separately. The Board undertook a global assessment in each of the three categories of "Knowledge", "Abilities" and "Personal Suitability". That is, the Board combined the scores for each of the qualifications under each of the categories and measured the candidates against a global score for each of the three broad categories.

[2]        The Applicants appealed the appointments of the successful candidates to the Public Service Commission Appeal Board (the "Appeal Board") under section 21(1) of the Public Service Employment Act (the "Act").

[3]         By decision dated May 16, 2002, the Appeal Board dismissed the Applicants' allegation. The Applicants seek judicial review of that decision.

Issues

[4]         The Applicants and the Attorney General of Canada, one of the Respondents, agree that the only issue before this Court is whether the Appeal Board correctly decided that the Selection Board respected the merit principle during the assessment process. In the particular circumstances of this case, the issue is whether the Selection Board erred in taking a global approach to the assessment of qualifications.

Background

[5]         In this case, a panel of three employees of HRDC, known as the Selection Board, was appointed to assess the candidates and select, rank and appoint the best qualified individual for the position. The candidates were assessed against the eleven qualifications contained in the Statement of Qualifications prepared by the HRDC. These qualifications related to Knowledge (2), Abilities (4) and Personal Suitability (5). To qualify, candidates were required to obtain an overall score of 75/125 (60%) in the "knowledge" category, 168/240 (70%) in the "Abilities" category and 140/200 (70%) in the "Personal Suitability" category based on the total of their scores on the individual qualifications.

[6]         Unfortunately, neither of the Applicants were deemed eligible. The Respondents, Annette Peach and Cathy Gilles-Barron, obtained the requisite scores and were placed on the eligibility list in order of merit.

Standard of Review

[7]         As agreed by the parties, I have applied a standard of correctness to his decision of the Appeal Board.

Analysis

[8]         This case was heard at the same sitting of this Court as Carty et al v. Attorney General of Canada, 2003 FC 1338; Docket: T-552-02, since the issue in both cases is identical. In Carty, supra, I determined that the Appeal Board was not correct in its conclusion. I see no different facts in this case that would lead me to a different conclusion. Here, as in Carty, the decision of Boucher v. Attorney General of Canada [2000] 252 N.R. 186 (F.C.A.) and Nelson et al v. Canada (Attorney General) et al [2001] 204 F.T.R. 287 (F.C.) are determinative of this issue. For the same reasons as expressed in that decision, I would allow this application for judicial review.

                                                                      ORDER

THIS COURT ORDERS THAT:

1.          The application for judicial review is allowed with costs to the Applicants.

2.         The decision rendered May 16, 2002 is set aside and the matter is referred back to a differently constituted Appeal Board to be dealt with in accordance with the reasons of this Court.

       "Judith A. Snider"

Judge

                                                           FEDERAL COURT

                                      Names of Counsel and Solicitors of Record

DOCKET:                                 T-943-02

STYLE OF CAUSE:              JAMES MERCER et al v.

ATTORNEY GENERAL OF CANADA et al

PLACE OF HEARING:         OTTAWA, ONTARIO

DATE OF HEARING:           WEDNESDAY, NOVEMBER 12, 2003

REASONS FOR ORDER     

AND ORDER:                       THE HONOURABLE MADAM JUSTICE SNIDER

DATED:                                    FRIDAY, NOVEMBER 14, 2003

APPEARANCES:

Ms. Jacquie de Aguayo                                                                                   FOR APPLICANTS

Mr. J. Sanderson Graham                                                                          FOR RESPONDENTS

SOLICITORS OF RECORD:

PUBLIC SERVICE ALLIANCE OF CANADA                                        FOR APPLICANTS

OTTAWA, ONTARIO

MORRIS ROSENBERG                                                                           FOR RESPONDENTS

DEPUTY ATTORNEY GENERAL OF CANADA

OTTAWA, ONTARIO