Kadouri v. Canada (Attorney General), 2005 FC 522

Date: 20050419

Docket: T-1522-03

Citation: 2005 FC 522

BETWEEN:

BOUCHRA KADOURI

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER

de MONTIGNY J.

[1]        This is an application for judicial review of a decision dated July 18, 2003 of an Appeal Board (the Board) established by the Public Service Commission of Canada (the Commission) pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the PSEA).

[2]        After an investigation, the Board concluded that the proposed appointments to the positions of administrative assistant and telephony administrative clerk following selection process 2002-REJ-CC-QUÉ-DGPS-101 and 2002-REH-CC-QUÉ-SAI-08 were in compliance with the merit principle, as required by the PSEA.

Facts

[3]        The applicant is an employee of the federal public service.  Following a competition notice posted by the Department of Human Resources Development on October 15, 2002, to fill permanent positions of administrative assistant and telephony administrative clerk at the CR-04 group and level, the applicant submitted her candidacy.

[4]        The Department required that, for both positions, the successful candidates have “Good ability to use a computer to produce a written document”.  The Department considered this skill was critical or essential for the administrative assistant position and compensatory for the telephony administrative clerk position.  In other words, successful candidates for the telephony administrative clerk position had to have certain skills in general, including “Good ability to use a computer keyboard to produce a written document”.

[5]        In both competitions, the selection board assessing the candidates chose to assess the candidates’ “Good ability to use a computer keyboard to produce a written document” by a test in which the candidates had to use computer software to reproduce a text in full within a given time frame.

[6]        On November 29, 2002, the selection board called the candidates, including the applicant, to take this test.  The test was held in the Department’s data processing training room.  The candidates had a computer at their disposal and had to reproduce a given text in 13 minutes.

[7]        However, it appears, and this fact was not in dispute in this Court, that the keyboards were not all identical: some had a French configuration and others an English configuration.  The result was that some candidates, including the applicant, had to take the test with a different keyboard from the one they normally used.

[8]        Realizing this problem before the test was given, the selection board decided not to penalize the candidates for mistakes involving accents or punctuation signs associated with the language of the keyboard.  However, it did not notify the candidates before or during the test.

[9]        The applicant failed this test, receiving a grade of 18%.  This grade was explained by certain spelling mistakes, the repeated inversion of the words “Canadiennes and Canadiens”, and by the omission of certain lines in the body of the text and at the end thereof.  Although she did quite well on the other tests, this was enough to disqualify her (either because it was an essential skill for the first position or because the grade had the effect of lowering her average below the passing grade for the overall assessment of skills assessed for the second position).

[10]      The applicant was notified by a letter dated December 10 (for the first competition) and  December 11 (for the second competition) that she had failed and that no further action would be taken on her candidacy.

[11]      In her affidavit the applicant alleged that she had not objected to the fact that her keyboard had an English configuration because she thought this difficulty was part of the test.  It was not until the test was over, when she spoke to other candidates, that she realized that not all the keyboards had the same configuration and that some candidates had a keyboard with French configuration.

[12]      Following receipt of the letter notifying her that she had failed the test and that consequently her candidacy would not be considered, she asked to meet with the chairperson of the selection board and, on or around December 23, told him about the differences in the keyboards used for the test.  That was when she learned that the Board did not take certain faults relating to the keyboard configuration into account.

[13]      The eligibility list for the administrative assistant position was published on January 31, 2003, and the eligibility list for the telephony administrative clerk position was published on February 3, 2003.

Impugned decision

[14]      The Appeal Board concluded that the applicant had been fairly and properly treated and that no action was warranted, as the merit principle had been observed in the course of the selection process.  The Board accepted the Department’s explanations and said that, in its opinion, all the candidates had been treated equally, in view of the fact that mistakes involving accents and characters relating to keyboard configuration had not been taken into account when the test was graded.

[15]      Further, the Board concluded that it was up to the applicant to complain about her keyboard as quickly as possible so that corrective action could be taken.  Relying on this Court’s previous decisions, and in particular on Cyr v. Canada (Attorney General), [2000] F.C.J. No. 1916, the Board wrote:

The evidence shows that the appellant did not inform the selection board of the inconveniences likely to hinder her full performance until the eligibility lists were published. She might have been able to have the selection board take a corrective measure such as letting her use a keyboard with the same configuration as that at her workstation. Such a decision by the selection board could have led to my intervention if it had been shown to be unreasonable. In this circumstance, I cannot intervene.

Issues

[16]      This application for judicial review essentially raises two questions: (1) did the Appeal Board err in concluding that the applicant had been fairly treated and the merit principle observed? (2) did the Appeal Board make an error of fact when it decided not to intervene on the ground that the applicant had not objected to the problem of keyboard configuration before the eligibility lists were published?

Analysis

[17]      The first question the Court must answer relates to the determination of the applicable standard of review.  Counsel for the applicant argued that the Appeal Board’s decision not to intervene because the merit principle had not been infringed was an error involving a mixed question of law and fact and consequently attracted the intermediate standard of review.  She further submitted that the Board had made an error of fact when it concluded that the applicant had not complained about the problem before the eligibility lists were published.

[18]      Counsel for the respondent, on the other hand, argued that the appropriate standard was patent unreasonableness, as the question whether the applicant was unfairly treated was a question of fact.  Alternatively, it was argued that this was a mixed question of fact and law which attracted the reasonableness standard.

[19]      I consider that the pragmatic and functional approach set out by the Supreme Court in Ryan, Dr. Q, Pushpanathan and Southam cannot lead the Court to follow the standard of the reasonable decision.  Although the four tests set out by the highest court to guide us in our discussion do not all point in the same direction, I feel that, properly assessed in the context of the case at bar, it is the only possible conclusion.

[20]      First, I note that the Appeal Board’s decisions are not protected by a privative clause and that applications for judicial review are not subject to the obtaining of a prior authorization by this Court.  Even if, according to the case-law, the absence of a privative clause is not regarded in itself as a determining factor, it is still an important indication of Parliament’s intent.

[21]      Further, there is no doubt that one of the purposes of the Act is to promote the merit principle in the appointment process to public service positions.  Although determination of merit is not strictly speaking a question of a legal nature, it is nonetheless of critical importance for candidates in a competition.  We are not concerned here with a debate the purpose of which is to strike a delicate balance between various interests, but with a dispute involving the immediate interests of the two parties, the employer and employee.  If we follow the analysis of Bastarache J. in Pushpanathan (at page 1009), we are not dealing here with a problem that would require “consideration of numerous interests simultaneously, and the promulgation of solutions which concurrently balance benefits and costs for many different parties”.  Accordingly, the application of this test does not entail great judicial restraint.

[22]      On the other hand, the Appeal Board’s expertise on these matters clearly cannot be discounted.  In view of their experience and the fact that they have to rule on many competitions, the members of an appeal board undoubtedly enjoy a certain advantage over judges of a court like this one.  However, too much importance should not be attached to this.  As has been noted several times, this advantage enjoyed by specialized administrative tribunals is more marked on questions within their fields of expertise, and tends to diminish in relation to questions of law or questions that do not require special expertise.  Thus, in Boucher et al. v. Canada (A.G.) (2000), 252 N.R. 186, the Federal Court of Appeal, per Strayer J.A, concluded that the Federal Court was not required to show very great deference to an appeal board on the question whether the merit principle required that great or minimal importance be given to the expertise and knowledge of candidates.  In the same way, I am inclined to think that an appeal board is not in a better position than this Court when it has to deal with the question whether the merit principle requires that candidates taking a test have all the same tools.

[23]      Finally, it seems to me that the determination the Appeal Board had to make involved a mixed question of law and fact.  In the case at bar, the Board had to determine whether the merit principle had been infringed in the particular circumstances in which the competition was held.  Consequently, it had to determine whether the facts submitted to it met the test set out in the Act.  This is the characteristic of a mixed question, which ordinarily requires some restraint by the courts, but not quasi-total deference, as is the case for purely factual questions.

[24]      In view of the foregoing analysis, therefore, I have come to the conclusion that the applicable standard of review is reasonableness simpliciter.  In other words, the question the Court must ask is the following: was the decision by the Appeal Board supported by a reason capable of withstanding [TRANSLATION] “careful” examination, even if this was not necessarily the only decision that could have been reached.

[25]      The parties agree that the merit principle is at the heart of the Act and governs the selection process for appointments to or from within the Public Service.  This rule is set out as clearly as possible in section 10(1) of the Act:

[26]      In this context, the function of the Appeal Board created by the Commission is to investigate and determine whether the merit principle has in fact been observed in the process which has led to an appointment.  Its first concern should not be to protect the rights of an unsuccessful candidate, but to avoid an appointment being made regardless of the principle of selection by merit.  In Charest v. Canada (Attorney General), [1973] F.C. 1217, the Federal Court of Appeal clearly explained the function of an appeal board:

Under section 10 of the Public Service Employment Act, “Appointments to . . . the Public Service shall be based on selection according to merit . . .”.  The holding of a competition is one means provided by the Act to attain the objective of selection by merit.  However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed.  When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition.  If a right of appeal is created by section 21, this is not to protect the appellant’s rights, it is to prevent an appointment being made contrary to the merit principle.  As, in my view, this is what the legislator had in mind in enacting section 21, it seems clear that a Board appointed under this section is not acting in an irregular manner if, having found that a competition was held in circumstances such that there could be some doubt as to its fitness to determine the merit of candidates, it decides that no appointment should be made as a result of that competition.  Such a decision may well cause some hardship to qualified candidates who have nothing wrong.  However, aside from the fact that it is not an undue hardship (since candidates can always enter another competition), one cannot admit, in order to avoid this hardship, that appointments can be made in the Public Service without ensuring that the merit principle is observed.

[27]      In the case at bar, the Appeal Board clearly made an error when it refused to intervene on the ground that the applicant had failed to complain in due time, that is, before the eligibility list was published.  It is quite clear from the evidence that the applicant informed the selection board as soon as she received a letter telling her that she had failed the test involving use of a computer keyboard, that is, over a month before the eligibility lists for the two competitions for which she had applied were published.  The principle applied by my colleague Tremblay-Lamer J. in Cyr v. Canada (Attorney General), [2000] F.C.J. No. 1916, was thus not applicable in the case at bar, as counsel for the respondent in fact conceded at the hearing.  It would undoubtedly have been desirable for the applicant to complain as soon as she learned of the fact that the keyboards did not all have the same configuration; but I cannot conclude from that that she did not complain in due time.

[28]      That being said, the respondent argued that this was not a fatal error since the applicant was in any case treated fairly and properly by the selection board.  Not only did she not testify about the way in which the keyboard configuration could have affected her performance, there is no evidence that other candidates might have been given an unfair advantage as a result of the fact that they had a keyboard configured according to their needs.  Counsel for the respondent further argued that the selection board had taken into account the additional difficulty which some candidates might have faced by allowing more time to reproduce the text than would ordinarily have been required, and by not taking into account mistakes involving accents and signs associated with the keyboard configuration.

[29]      With respect, I cannot subscribe to that argument.  On the contrary, it seems to me that, at a minimum, the merit principle, according to which the best candidate to fill a position should be found, requires that all candidates be placed on an equal footing when the time comes to assess them.  How can one be sure that the best candidate is chosen if they are not given the same tools to do the test?  It may well be that the corrective measure which the authorities tried to apply could alleviate the disadvantages suffered by some candidates, but how can one be sure?

[30]      By allowing more time than would ordinarily have been required, an advantage was still being indirectly given to those who had a keyboard with a French configuration, as they may have had time to revise their text, which the others perhaps did not have a chance to do.  As to the fact that mistakes relating to keyboard configuration were not taken into account, how can we be sure that this was the only effect of the stress occasioned by the use of a keyboard with an English configuration?

[31]      It may well be that the disadvantage associated with the use of a keyboard with which one is not familiar was offset by notifying candidates at the start of the test that mistakes involving the keyboard configuration would not be taken into account.  I do not have to decide that point in considering the application for judicial review at bar.  However, I cannot help pointing out that the best way of ensuring that everyone is treated equally would simply be to provide keyboards configured in the language of the test, or compatible with the preferences of candidates.

[32]      In conclusion, I consider that the Appeal Board erred when it decided that it could not intervene and that the merit principle had been observed in all respects.  It was not reasonable to conclude that candidates had had an equal chance despite the fact that some of them had to use a keyboard with which they were not familiar.  In the circumstances, the merit principle clearly was not observed and the Appeal Board should have intervened to draw the Commission’s attention to the irregularity vitiating the selection process, in accordance with subsection 21(3) of the Act.

Certified true translation

François Brunet, LL.B., B.C.L.

                                                             FEDERAL COURT

                                                     SOLICITORS OF RECORD

DOCKET:                                         T-1522-03

STYLE OF CAUSE:                        BOUCHRA KADOURI v. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                   Ottawa, Ontario

DATE OF HEARING:                      April 4, 2005

REASONS FOR ORDER BY:       The Honourable Mr. Justice de Montigny

DATED:                                             April 19, 2005

APPEARANCES:                                                                                                                           

James Cameron                                                            FOR THE APPLICANT

Marie Crowley                                                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne                           FOR THE APPLICANT

Ottawa, Ontario

John H. Sims, Q.C.                                                       FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario