Canada (Attorney General) v. Bormais, 2004 FC 217

Date: 20040130

Docket: T-718-03

Citation: 2004 FC 217

BETWEEN:

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                       Applicant

                                                                                 and

                                    MICHELINE BORMAIS AND SUSAN KROEKER

Respondents

                                                                                 and

                       JAMES ADAMS, VERONICA AMBROZIAK, ELEVER BAKER,

                          DENISE CLÉMENT, SUSAN CORDUKES, ANDREW CRAN,

                          CLAIRE L'HEUREUX, DIANE LALONDE, JANE MURPHY,

                     GINETTE PILON, FLORDERIZA REYES, MARYANNE ST-ONGE,

                      LALITHA SASTRI, JEAN SERRE, ELAINE SMITH, MORGAN S,

                          KIMBERLY BG, MEIER L, EARL C, CLARKE JG, PAUL P,

                     BERNARD K, FERGUSON F, ROSE A, LACROIX KLM, KAAT M,

                  MILLOY P, SIMARD JOBIN C, MCPHERSON GP, DAMPHOUSE M,

                     KENT RUSSEL K, PARISE DL, GUILLEMETTE L, RAYMOND D,

                             CLOUTIER J, LEVERE S, SIMONEAU R, MAXWELL TL,

                               KHATRI N, DUCKWORTH ANSON JM, GREGOIRE S,

                                 ROBITAILLE D, DESORMEAUX JM, SALISBURY D,

                      MWANZALA AL, ROLLING F, CAILLER A, VERTEFEUILLES J,

                      STEVENS PL, MIRON R, PERRIN GP, LABELLE T, ZIEGLER S,

                             GAUTHIER S, WOOD J, O'CONNELL KL, ST-AMOUR L,

                         MCGEE T, CARRIERE J, BONTEMPS A, PLOUFFE DUBE J,

                      RICHARD J, LYNCH EA, HENDRICK J, MAICZAN SJ, FORD P,

                             DESJARDINS L, CHONA M, D ANGELO SD, CARON SC,

                          RIZCALLAH GP, MICHAEL AMY, CHANTALE BRISSON,

                      PIERRE DESCHAMBAULT, BRIAN JORDAN, JOSEPH KIWAN,

                                  CINDY LEE, LOUISE MALOUIN, IAN MARSHALL,

                        ROLEX MESIDOR, BETTY PINAUD, HARVINDLA RANGAR

Respondents

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons follow the hearing on the 22^nd of January, 2004 of an application for judicial review of a decision of Nathalie Leblanc, Chairperson of a Public Service Commission Appeal Board (the " Appeal Board"), rendered the 3^rd of April, 2003 wherein the Board allowed the appeals brought by the Respondents Micheline Bormais and Susan Kroeker (the "principal Respondents") against the proposed appointments of the remaining Respondents to the positions of Team Leader, Application Processing, and Team Leader, Central Operations, with Human Resources Development Canada ("HRDC") at Ottawa. The critical portion of the decision under review is in the following terms:

I have detected an irregularity in the selection board's assessment of the candidates' qualifications that would lead me to believe that the merit principle embodied in subsection 10(1) of the Act has been contravened. It follows that I accept the common allegation made by the appellants. The evidence has demonstrated that the selection board members were knowledgeable [sic] of what was required in order to qualify in this selection process. Therefore, by providing references for candidates in the selection process without soliciting another referee, the two selection board members placed themselves in a conflict of interest; the same one they took steps to avoid by insisting that candidates who were supervisors not provide a references for other candidates. Even if they did the reference check with the outmost [sic] seriousness, it cannot be disregarded that those candidates were possibility [sic] given an unfair advantage as compared to the other candidates who had to use a referee who was not in possession of all the information. The common allegation of the appellants is founded, and the appeal is allowed on this basis.

[2]                 Subsection 10(1) of the Public Service Employment Act^[1] embodies the merit principle that is at the heart of the Public Service employment regime. 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.

[3]                 An equivalent application for judicial review, commenced by the same Applicant and naming Louise Malouin as the principal Respondent, and involving an essentially identical decision, except that it is in the French language, was commenced contemporaneously with this application for judicial review. By Order of Prothonotary Tabib dated the 7^th of August, 2003, that matter and this were to be consolidated "...so that both matters may be heard together as one." No Appearance was filed on behalf of a Respondent in that matter as required by Rule 305 of the Federal Court Rules, 1998 and, at the opening of the hearing of this matter, counsel for Ms. Bormais and Ms. Kroeker advised the Court that she had no mandate to represent Ms. Malouin.    In the result, the hearing of this application proceeded without reference to the application for judicial review wherein Ms. Malouin was named as the principal Respondent. The other Court file in question is File: T-716-03.

BACKGROUND

[4]                 The following factual background was essentially not in dispute before the Court. Prior to about 2002, the Central Operations Directorate of Income Security Programs at HRDC had a high percentage of term and acting employees at the CR-03 and CR-04 groups and levels. In order to stabilize its workforce, HRDC made a decision to run a closed competition to staff both levels, that is to say, the CR-03 and CR-04 levels. The assessment methodology that was to be used by the Selection Board was to consist of an initial screening, an interview, a written exercise and a reference verification. It is the reference verification element of the methodology that is here at issue.

[5]                 Out of 147 applications that were received by HRDC, 102 candidates met the education and experience criteria and were screened in for further assessment. The Selection Board proceeded with the assessment of the 102 candidates.

[6]                 The results of the Selection process were announced by HRDC in or about late May, 2002. The results were not favourable to the principal Respondents herein and Louise Malouin, the principal Respondent on File: T-716-03.

[7]                 In or about June, 2002, the three (3) candidates, Micheline Bormais, Susan Kroeker and Louis Malouin, each filed a Document of Appeal contesting the results of the selection process. While each of the three (3) named candidates put forward various grounds for appealing the results of the selection process, most of which were dismissed by the Appeal Board, the single ground for appeal which all three (3) candidates put forward and on which each succeeded related to the issue of whether members of a Selection Board, on the particular facts of this matter, could provide references for candidates, which references were a central element of the selection process and were in a very structured form responsive to a "reference check guide"^[2] developed by members of the Selection Board and with a formalized related marking scheme, also developed by members of the Selection Board.

[8]                 Supervisors of candidates in the competition, who themselves were candidates in the competition, but who had no hand in the development of the reference check guide and no knowledge of the rating scheme in relation to reference checks, were disqualified from providing references. No equivalent disqualification was extended to members of the Selection Board notwithstanding their participation in the development of the reference check guide and their knowledge of the rating scheme for references.   

[9]                 Two (2) members of the Selection Board provided references for a total of five (5) participants in the competition but did not participate in the marking of the references provided by them. There was no evidence on the record before the Court or before the Appeal Board to suggest that members of the Selection Board who provided references failed to act fairly or honestly. Nonetheless, it was the participation of those members of the Selection Board by providing references for participants in the competition that was at the heart of the decision under review.

THE ISSUES

[10]                The sole issues on this application for judicial review are, first, the appropriate standard of review, and secondly, against that standard, whether the Board erred in a manner that would justify the intervention of this Court.

ANALYSIS

a)         Standard of Review

[11]            Counsel were in agreement that the issue of whether or not the merit principle had been contravened by the actions of the Selection Board is an issue of law and that therefore a determination in that regard by the Board should be reviewed against the standard of correctness. In Boucher v. Canada (Attorney General)^[3], Justice Strayer, for the Court, wrote at paragraph [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 PSCAB's [the Public Service Commission Appeal Board's] decision to confirm that process equally involved a conclusion of law. We are not persuaded that the PSCAB 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 [now the Federal Court] should have applied is that of correctness.

[12]            I am satisfied that the same could be said with respect to the issue now before the Court.

[13]            Counsel for the principal Respondents urged that the foregoing is not the end of the matter with regard to the question of appropriate standard of review but rather that findings of fact made by the Board that underpin its decision as to whether the merit principle was respected are entitled to a significant degree of deference. For this proposition, she referred to paragraph 18.1(4)(d) of the Federal Court Act^[4]. The relevant portions of subsection 18.1(4) of the Federal Court Act read as follows:

18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

...

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

...

18.1(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:

...

d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;

...

[14]            While I am satisfied that counsel for the Respondent is correct in this regard, I am also satisfied that there is no issue before the Court with regard to the Appeal Board's findings of fact. Thus, the question of standard of review on findings of fact does not arise in this matter.

[15]            Further, I am satisfied that none of the foregoing conclusions regarding the appropriate standard of review would be changed by the outcome of application of a pragmatic and functional analysis, which I do not propose to detail here, to determine the appropriate standard of review, as currently mandated by recent decisions from the Supreme Court of Canada.^[5]

b)          Reviewable error in the Board's determination regarding contravention of the merit principle

[16]            For ease of reference, I quote again the brief passage from the Appeal Board's reasons for decision that reflects its analysis and conclusion regarding contravention of the merit principle:

I have detected an irregularity in the selection board's assessment of the candidates' qualifications that would lead me to believe that the merit principle embodied in subsection 10(1) of the Act has been contravened. It follows that I accept the common allegation made by the appellants. The evidence has demonstrated that the selection board members were knowledgeable [sic] of what was required in order to qualify in this selection process. Therefore, by providing references for candidates in the selection process without soliciting another referee, the two selection board members placed themselves in a conflict of interest; the same one they took steps to avoid by insisting that candidates who were supervisors not provide a references for other candidates. Even if they did the reference check with the outmost [sic] seriousness, it cannot be disregarded that those candidates were possibility [sic] given an unfair advantage as compared to the other candidates who had to use a referee who was not in possession of all the information. The common allegation of the appellants is founded, and the appeal is allowed on this basis.                           [emphasis added]

[17]            The highlighted words in the foregoing quotation are what I determine to be an unfortunate use of language reflecting an error in law. I am satisfied that it is correct to say that the Selection Board members sought to avoid a conflict of interest, or an appearance of a conflict of interest, when they precluded supervisors of candidates in the competition from providing references for candidates when the supervisors were themselves candidates in the competition. But the situation Selection Board members put themselves in when they themselves provided references after having participated in the development of the reference check guide earlier referred to and the marking scheme for references provided in accordance with the guide could hardly be described as a "conflict of interest" situation. Indeed, neither counsel before the Court attempted to so characterize it.

[18]            Counsel for the Applicant urged that, if any difficulty whatsoever arose from the provision of references by members of the Selection Board, it was rather in the nature of a raising of a reasonable apprehension of bias on their part. But counsel went on to point out that there was no evidence before the Appeal Board to support a finding of actual bias and that, against the test from Committee for Justice and Liberty v. National Energy Board^[6], no informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that it is more likely than not that the Selection Board would, by reason of the participation of two of its members through providing references, whether consciously or unconsciously, not decide the matter fairly.

[19]            Counsel for the Respondent, like counsel for the Applicant, chose not to characterize the difficulty, if indeed it was one, created by the members of the Selection Board, as one of a conflict of interest but rather as an action or series of actions that might reasonably be seen as conferring an unfair advantage or disadvantage. Counsel referred me to Sudbury v. Canada (Attorney General)^[7], where Justice Sharlow, then of the Trial Division of the Federal Court of Canada, wrote at paragraphs [20] and [21]:

It bears repeating that the marking was subjective, and that Mr. Ramsoondar [a member of the Selection Board] was in a position to influence the marking and ranking of candidates to a degree that would not be possible to measure. The appeal board, accepting that this was the case, concluded that it was impossible to say that the score given to Ms. Parasram was a fair assessment of her skills and abilities. That is why her selection cannot stand.

However, the appeal board failed to recognize that in the face of Mr. Ramsoondar's improperly motivated participation in the selection process, it is equally impossible to conclude that any other candidate was fairly assessed. Mr. Ramsoondar's position on the selection board could have resulted in an improper assessment of any of the other candidates, or all of them.

On the facts of this matter, there was certainly no allegation that the actions of the two (2) members of the Selection Board who provided references for candidates were "improperly motivated participation" . But, counsel urged, that does not render the reasoning in the quoted paragraphs inapplicable on the facts of the matter.

[20]            I am satisfied that the quoted paragraphs from the Sudbury decision are on point for the purposes of this matter. I determine that the provision of references by members of the Selection Board after they participated in development of the reference check guide and the marking scheme for references provided for candidates, even though they themselves did not participate in the marking of references that they provided, was, in itself, sufficient to raise a reasonable apprehension that an unfair advantage or disadvantage in the competition may have been conferred on or against the participants for whom those references were provided.

[21]            But that is not the end of the matter. As earlier noted, the Appeal Board did not characterize its concern as one raising a reasonable apprehension that an unfair advantage or disadvantage was conferred but rather expressed its concern as a circumstance in which two (2) members of the Selection Board placed themselves in a conflict of interest and then went on to describe the situation those members placed themselves in by what I conclude to be a completely inapt reference. In the result, the question arises, is it open to the Court to conclude that what the Appeal Board meant by its determination regarding a breach of the merit principle was correct when what it said, rather than meant, in the view of this judge, was in error. I am satisfied that it is not open to this Court to rewrite the Appeal Board's decision for it, and that therefore, the Appeal Board, in expressing itself as it did, committed a reviewable error.

[22]            As noted earlier in these reasons, the Appeal Board made two (2) decisions, one in English and one in French, one for the principal Respondents in this matter and the other for Ms. Malouin, the principal Respondent on Court File T-716-03. I have reviewed the relevant portion of the decision in the French language and have determined that reference to the French language decision provides no relief from the reviewable error that I find to exist in the English language decision.

CONCLUSION

[23]            In the result, this application for judicial review will be allowed. The decision that is under review will be set aside and the matter will be referred to a differently constituted Appeal Board for rehearing and redetermination. In light of the foregoing result, counsel for the Applicant is invited to consider whether the matter on Court File: T-716-03 might be disposed of without proceeding to a hearing.

[24]            The reasons and Order herein will issue simultaneously in both official languages.

COSTS

[25]            Counsel were agreed before the Court that costs should follow the event. In the result, an order will go for costs in favour of the Applicant, such costs to be determined on the ordinary scale.

__________________________________

                                                                                                                  J. F.C.

Ottawa, Ontario

January 30, 2004

.

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-718-03

STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v.          MICHELINE BORMAIS ET AL.

PLACE OF HEARING:                                   OTTAWA, ONTARIO

DATE OF HEARING:                                     JANUARY 22, 2004

REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE GIBSON

DATED:                      JANUARY 30, 2004

APPEARANCES:

ALEXANDRE GAY                                            FOR APPLICANT

JACQUIE DE AGUAYO                                                FOR RESPONDENT

SOLICITORS OF RECORD:

MORRIS ROSENBERG

DEPUTY ATTORNEY GENERAL OF CANADA     

DEPARTMENT OF JUSTICE

234 WELLINGTON STREET

OTTAWA, ONTARIO

K1A 0H8                                                            FOR APPLICANT

PUBLIC SERVICE ALLIANCE OF CANADA

LEGAL SERVICES

SUITE 200

233 GILMOUR STREET

OTTAWA, ONTARIO

K2P 0P1                                                               FOR RESPONDENT