Date: 20040223
Docket: T-582-03
Citation: 2004 FC 262
Ottawa, Ontario, this 23rd day of February, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
BRUCE LEVY
Applicant
- and -
ATTORNEY GENERAL OF CANADA and
ALAIN HAUSSER
Respondents
REASONS FOR ORDER AND ORDER
Overview
[1] This case involves an appeal by an unsuccessful candidate, Bruce Levy ("Levy"), for a position as an EX-01 in the Department of Foreign Affairs and International Trade ("DFAIT"). There are two issues raised:
(1) Whether the competition was conducted in accordance with the merit principle; and
(2) What documents an unsuccessful candidate can obtain to support his challenge to the competition process.
Facts
[2] In September 2001, DFAIT conducted a closed competition for appointment to Foreign Service Offices positions at the EX-01 group and level.
[3] The candidates were screened by the Selection Board in a two-phase process consisting of:
(a) A management simulation exercise (the "In-Basket Exercise"); and
(b) A review of the candidates' three most recent Foreign Service Appraisal Reports ("FSARs").
[4] Following completion of the first two phases of the competition, there was a top-down selection of the top 50 candidates, which was later increased to 65 candidates. It is this aspect of the competition process to which Levy objects. Levy had passed the first two phases but was screened out of the third phase. He ranked 100th.
[5] The remaining 65 candidates went through psychological assessment, interviews and reference checks. The Selection Board found 32 candidates qualified and 27 names were placed on the eligibility list in order of merit.
[6] Aspects of this first eligibility list are the subject of a separate judicial review which will be heard shortly. However, a subsequent eligibility list was issued adding Alain Hausser. It is this eligibility list which was appealed and is the subject of this judicial review.
[7] As part of his appeal process commenced pursuant to s. 21 of the Public Service Employment Act, R.S.C. 1970, c. P-32, s. 1 ("PSEA") wherein Levy challenges the selection process, Levy requested the following documents:
1. The list of candidates receiving a "passing" mark of 117 or higher in the first phase (In-Basket) of the competition.
2. The name and marks of candidates who received 600 points or higher in the second phase (Screening Board appraisal review) of the competition.
3. The names and in-basket scores of the (65) candidates selected for the third phase (PSA assessment/DFAIT interviews) of the competition.
4. The list of 28 individuals promoted in order of their scores in the third phase.
5. The individual hand-written notes and individual score sheets from the Screening Board for nine candidates, as per their finishing order in the second phase: Candidates finishing 14th, 22nd, 50th, 51st, 65th, 78th, 82nd, 93rd.
6. All memoranda, briefing notes, email and other documents that explain how and when the number of promotions was decided.
7. All memoranda, briefing notes, emails and other documents that explain how, why and when the decision was taken to refer about 50 candidates to the third phase of the competition, and further, all such material to explain how that number was subsequently changed to 65.
[8] The Appeal Board's decision of March 18, 2003 dismissed Levy's appeal. There are three aspects of the decision which are critical to this judicial review:
(a) The Board held that the information requested did not conform to the provisions of s. 26 of the Public Service Employment Regulations 2000, SOR/2000-80 (the "Regulations").
2. The departmental representative was unable to explain the basis for the determination on the limitation of candidates.
3. The competition process did not offend the merit principle because the terms thereof were communicated to candidates and that the Department had the right to impose limits and reserve flexibility to expand the number.
Relevant Legislation
[9] The cornerstone of selection to, from or within the Public Service is the merit principle enshrined in s-s. 10(1) of the PSEA:
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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.
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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.
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[10] The operation of the selection process is described, in part, in s-ss. 16(1) and 17(1) of the PSEA:
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16. (1) The Commission shall examine and consider all applications received within the time prescribed by it for the receipt of applications and, after considering such further material and conducting such examinations, tests, interviews and investigations as it considers necessary or desirable, shall select the candidates who are qualified for the position or positions in relation to which the competition is conducted.
17. (1) From among the qualified candidates in a competition the Commission shall select and place the highest ranking candidates on one or more lists, to be known as eligibility lists, as the Commission considers necessary to provide for the filling of a vacancy or anticipated vacancies.
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16. (1) La Commission étudie toutes les candidatures qui lui parviennent dans le délai fixé à cet égard. Après avoir pris connaissance des autres documents qu'elle juge utiles à leur égard, et après avoir tenu les examens, épreuves, entrevues et enquêtes qu'elle estime souhaitables, elle sélectionne les candidats qualifiés pour le ou les postes faisant l'objet du concours.
17. (1) Parmi les candidats qualifiés à un concours, la Commission sélectionne ceux qui occupent les premiers rangs et les inscrit sur une ou plusieurs listes, dites listes d'admissibilité, selon le nombre de vacances auxquelles elle envisage de pourvoir dans l'immédiat ou plus tard.
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[11] The basic appeal rights for a closed competition are set out in s-s. 21(1) of the PSEA:
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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.
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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.
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[12] Germane to the issue of disclosure of documents is s. 26 of the Regulations:
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26. (1) An appellant shall be provided access, on request, to any information, or any document that contains information, that pertains to the appellant or to the successful candidate and that may be presented before the appeal board.
(2) The deputy head concerned shall provide the appellant, on request, with a copy of any document referred to in subsection (1).
(3) Despite subsections (1) and (2), the deputy head concerned or the Commission, as appropriate, may refuse to allow access to information or a document, or to provide a copy of a document, if the disclosure might
(a) threaten national security or any person's safety;
(b) prejudice the continued use of a standardized test that is owned by the deputy head's department or the Commission or that is commercially available; or
(c) affect the results of such a standardized test by giving an unfair advantage to any individual.
(4) If the deputy head concerned or the Commission refuses to allow access to information or a document under subsection (3), the appellant may request that the appeal board order such access.
(5) If the appeal board orders access to information or a document under subsection (4), that access is subject, before and during the hearing, to any conditions that the appeal board considers necessary to prevent the situations described in paragraphs (3)(a) to (c) from occurring.
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26. (1) L'appelant a accès sur demande à l'information, notamment tout document, le concernant ou concernant le candidat reçu et qui est susceptible d'être communiquée au comité d'appel.
(2) L'administrateur général en cause fournit sur demande à l'appelant une copie de tout document visé au paragraphe (1).
(3) Malgré les paragraphes (1) et (2), l'administrateur général en cause ou la Commission peut refuser de donner accès à l'information ou aux documents ou de fournir copie des documents dont l'un ou l'autre dispose, dans le cas où cela risquerait:
a) soit de menacer la sécurité nationale ou la sécurité d'une personne;
b) soit de nuire à l'utilisation continue d'un test standardisé qui appartient au ministère de l'administrateur général en cause ou à la Commission ou qui est offert sur le marché;
c) soit de fausser les résultats d'un tel test en conférant un avantage indu à une personne.
(4) Si l'administrateur général en cause ou la Commission refuse de donner accès à de l'information ou à des documents aux termes du paragraphe (3), l'appelant peut demander au comité d'appel d'en ordonner l'accès.
(5) Si le comité d'appel ordonne que l'accès soit donné à de l'information ou à des documents en vertu du paragraphe (4), cet accès est assujetti, avant et pendant l'audition, aux conditions que le comité d'appel estime nécessaires pour prévenir les situations décrites aux alinéas (3)a) à c).
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(6) Any information or document obtained under this section shall be used only for purposes of the appeal.
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(6) L'information ou les documents obtenus en vertu du présent article ne peuvent être utilisés que pour les besoins de l'appel.
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Analysis
[13] While this judicial review raises two issues, it can be determined on the basis of the Appeal Board's decision denying Levy the documents which he requested.
[14] The parties agreed in their respective legal memoranda that the standard of review in this case is correctness. The Respondent made oral argument that, depending upon the question being examined by the Court, the standard of review should be reasonableness.
[15] The Respondent is correct that the standard of review does, to some extent depend on the question being considered, however, in this case the issues as I see them are purely legal. Therefore, the conclusion in Boucher v. Canada (Attorney General) (2000) 252 N.R. 186 is applicable - the standard of review is correctness.
[16] Levy's appeal was a challenge to the legality by which the selection process was established, the choice of the top-down selection method. Levy put directly in issue the method of assessing the relative merit of candidates and the basis for choosing a numerical cut-off of candidates.
[17] The obligation to establish that the competition was conducted in accordance with the merit principle rests with the Selection Board (see: Field v. Canada (Attorney General), [1995] F.C.J. No. 458).
[18] While there is some explanation of the rationale for a numerical cut-off found in the Panorama document describing the competition, the most telling non-explanation is found in the evidence of the Department at paragraph 42 of the Appeal Board decision:
The department explained that it was entitled to determine the number of candidates that would proceed to the assessment phase of the selection process. The department's representative, Mr. Chartrand explained that this was not a decision into which he had input. Possibly the number was increased based on the anticipated number of vacancies, but he could not speculate with certainty. Nevertheless, he maintained that this was a decision the department was entitled to make.
[19] It would appear from the Appeal Board's decision that the Department might not be able to meet its obligation to establish that it had complied with the merit principle. In the context of Levy's appeal, the Department's witness did not justify the process and the Appeal Board would not provide Levy with access to documents which are relevant to his appeal.
[20] Section 26 of the Regulations describes the documents to which an appellant is entitled as those "that pertain to the appellant or to the successful candidate".
[21] The word "pertains" can, in the proper context and consistent with the purpose of the provision, be given a wide meaning. Since the purpose of s. 26 is to afford an appellant disclosure in the appeal process, it is consistent with the purpose of the provision to view "pertains" as equivalent to "relevant" or otherwise having a nexus with the appellant or the successful candidate (see ICN Pharmaceuticals Inc. v. Canada (Staff of the Patented Medicine Prices Review Board) 1 F.C. 32, paras. 46, 55, 57).
[22] The right of appeal and the right to make a meaningful challenge to the selection process requires that s. 26 of the Regulations be given a wide interpretation.
[23] The Appeal Board interpreted s. 26 in a narrow manner focussing on the documents as a class of documents rather than directing their mind to the relevance of the documents or to the purposes of this Regulation.
[24] In addition to the interpretation of s. 26, the request for documents must be considered in the context of general public law principles of fairness and natural justice.
[25] Justice Kelen of this Court in Haydon et al v. Canada 2003 FCT 740 confirmed the principle that an appeal board must comply with the principles of natural justice and fairness. This is consistent with the Supreme Court of Canada's decision, [1980] 1 S.C.R. 316">Perry v. Canada, [1980] 1 S.C.R. 316.
[26] I cannot see how the appeal would measure up to these principles where an appellant was denied access to documents which are potentially highly relevant to the grounds of his appeal.
[27] Section 26 of the Regulations cannot be viewed as a complete code which operates to deny an appellant access to relevant documents. It is at best a minimum standard of disclosure.
[28] On this issue alone, the Appeal Board's decision should be quashed and the matter referred to a differently constituted appeal board which should order the production of the documents requested.
[29] Since the issue of whether the competition was conducted in accordance with the merit principle will be examined again and against a more fulsome record, I will make no finding on this issue. The new appeal board will no doubt give careful consideration to s-s. 16(1) of the PSEA and the words, ". . . shall select the candidates who are qualified for the position . . .".
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed and the matter is referred back to
another panel of the Public Service Commission Appeal Board for a new hearing with directions to order access to the documents requested by the Applicant.
2. The Applicant is entitled to his costs.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-582-03
STYLE OF CAUSE: BRUCE LEVY
v.
ATTORNEY GENERAL OF CANADA and
ALAIN HAUSSER
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 18, 2004
REASONS FOR ORDER : The Honourable Mr. Justice Phelan
DATED: February 23, 2004
APPEARANCES:
Mr. Andrew Raven FOR APPLICANT
Mr. Michael Roach FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Andrew Raven FOR APPLICANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General
Ottawa, Ontario
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