Fox v. Canada (Attorney General), 2004 FC 952

Date: 20040630

Docket: T-143-03

Citation: 2004 FC 952

Ottawa, Ontario, June 30, 2004

Present:         Madam Justice Danièle Tremblay-Lamer

BETWEEN:

                                                   JOHN FOX and JOHN FORD

                                                                                                                                        Applicants

                                                                           and

                                        ATTORNEY GENERAL OF CANADA and

                                                             MARK MURDOCK

                                                                                                                                  Respondents

                                           REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                This is an application for judicial review of the negative decision of the Public Service Commission Appeal Board (the "Appeal Board") on March 1, 2003, dismissing the applicants' appeals under section 21 of the Public Service Employment Act, R.S. 1985, c. P-33 ("the Act"), in which the Board found that the appointment of Mr. Mark Murdock to the position of Chief, Health Safety and Security with the Department of Fisheries and Oceans ("DFO") did not show evidence of bias or pre-selection, and was in keeping with the merit principle.

BACKGROUND

[2]                In November 2001, DFO commenced a closed competition to fill the position of Chief, Health, Safety & Security in Dartmouth, Nova Scotia. The Statement of Qualifications set out the following education and experience pre-requisites for admission to the assessment phase of the competition: experience in the delivery of Occupational Safety and Health and/or Security programs, and experience in the management of human and financial resources. Candidates meeting those pre-requisites were to then be assessed against three qualifications for appointment: knowledge, abilities/skills, and personal suitability.

[3]                Mr. Alan McLarty, then acting Regional Director, Human Resources, acted as the selection board for the appointment. Thirty applications were received for the position, with one removed due to late submission. Fifteen applications were removed from the remaining 29 applications, as the applicants were found not to have the requisite experience. The applicant Mr. Fox was one of the candidates removed from the selection process before the assessment phase, as he failed to demonstrate on his resume that he had the requisite experience in the management of financial resources.

[4]                Of the 14 remaining candidates, nine chose to write the knowledge exam, held on March 27, 2002 or April 2, 2002. The applicant Mr. Ford was one of those nine candidates who wrote the exam. Mr. Murdock, the successful candidate, and the person who had been appointed to the position at issue on an acting basis prior to the competition, wrote the exam on April 11^th, 2002, instead of previously scheduled dates, due to extenuating circumstances. The pass mark for the exam was 49.8/83, or 60%. The applicant Mr. Ford received a score of 31.5/83, or 38%, and he was consequently not permitted to proceed in the competition. Mr. Murdock was the only candidate to pass the exam, with a score of 56.5/83, or 68%.

[5]                On May 10, 2002, Mr. McLarty assessed the abilities and personal suitability of the only remaining candidate, Mr. Murdock, based on his personal knowledge of Mr. Murdock that was formed through his position as Mr. Murdock's direct supervisor. He determined that Mr. Murdock met the qualifications and placed his name on the eligibility list. Mr. Murdock was subsequently appointed to the position.

[6]                On May 15, 2002, the Department sent letters to all the applicants, informing them of the outcome of the competition and their right to appeal the decision. Four candidates, including Mr. Fox and Mr. Ford, appealed the selection of Mr. Murdock to the Appeal Board, pursuant to subsection 21(1) of the Act.

APPEAL BOARD'S DECISION

[7]                The Appeal Board was chaired by Ms. Judith Giffen, who heard the appeals over five days in September 2002 to December 2002. The applicant Mr. Fox alleged before the Appeal Board that the selection board, or Mr. McLarty, had been biased against him, and that the Department had pre-selected Mr. Murdock. He alleged that Mr. Murdock had an unfair advantage as he had occupied the position for several months before the competition. The applicant Mr. Ford also alleged before the Board that Mr. McLarty had been biased in his selection of Mr. Murdock, and that Mr. Murdock had an unfair advantage as he had occupied the position previously.

[8]                On March 1, 2003, the Appeal Board dismissed the appeals of both Mr. Fox and Mr. Ford. In regard to Mr. Fox, the Board found that there was no evidence of actual bias on the part of the selection board, though the Board recognized how there could be some basis for a reasonable apprehension of bias on the part of Mr. Fox when he regarded the staffing action, due primarily to a history of bad feelings with the Department and the purported breach of a mediated agreement reached as a result of a complaint before the Public Service Commission. However, there was no evidence that the applicant was unfairly screened from the competition. The onus was on Mr. Fox to express the necessary financial qualifications in his resume and he did not do so. Mr. Fox did not establish that he had been improperly screened from the competition, nor did he demonstrate that Mr. Murdock had been unfairly advantaged in any way. The Appeal Board rejected the applicant Mr. Ford's appeal for similar reasons, as there was no evidence that Mr. Murdock had unfairly benefited from acting in the position in question prior to being assessed.

[9]                The applicants Fox and Ford filed an application for judicial review on April 4, 2003.

ISSUES

[10]            The applicants raised two central issues on judicial review:

            A.         Did the Appeal Board err in its application of the test for bias?

            B.         Did the Appeal Board err in its analysis of pre-selection, or rely on irrelevant considerations or fail to consider relevant considerations in its analysis of pre-selection?        

LEGISLATIVE FRAMEWORK

[11]            Public Service Employment Act, supra:

STANDARD OF REVIEW

[12]            The applicants submit that the legal test for bias is a question of law and such expertise clearly resides with the courts. As such, a standard of correctness should be applied. It is a question of law whether the merit principle enshrined in section 10 of the Act was offended by the selection process, and a selection process tainted by bias or irrelevant considerations certainly offends the merit principle: Boucher v. Canada (Attorney General) (2000), 252 N.R. 186 (F.C.A.) at para. 24.

[13]            The respondent submits that though the appropriate test for bias is a question of law attracting a standard of correctness, any attack on the Board's appreciation or assessment of the evidence regarding pre-selection should be reviewed on the standard of patent unreasonableness or alternately reasonableness.

[14]            As noted by Russell J. in Gawlick v. Canada (Attorney General), [2004] F.C.J. No. 795 (QL), the pragmatic and functional approach has been applied to decisions of the Appeal Board of the Public Service Commission with somewhat varying results. In the case at hand, turning to the first issue, I find that the question of whether the correct test for bias has been used is a question of law and thus must be reviewed on a correctness standard: Boucher v. Canada (Attorney General), supra, at para. 7. However, the question of whether the Appeal Board properly assessed the actions of the selection board in relation to the merit principle and pre-selection, or whether the merit principle was offended on the facts, is a question of mixed fact and law and in my opinion must be reviewed on a reasonableness simpliciter standard: Hains v. Canada (Attorney General) (2001), 209 F.T.R. 137.

ANALYSIS

            A.         Did the Appeal Board err in its application of the test for bias?

[15]            The applicants submit that the Appeal Board erred in its application of an "actual bias" standard to the selection board's appointment of Mr. Murdock. The Board cited the case of Canada (Attorney General of Canada) v. Mirabelli, [1987] F.C.J. No.142 (C.A.) (QL), for the proposition that the presence of actual bias was necessary, but it failed to recognize that this test has been clarified by recent jurisprudence.

[16]            In Hnatiuk v. Canada (Treasury Board), [1993] F.C.J. No. 703 (QL), it was held that though, as stated in Mirabelli, supra, a reasonable apprehension of bias by itself was insufficient, it was also unreasonable to require only proof of actual bias in order to establish that the merit principle had been contravened. Rather, surrounding circumstances could demonstrate a "presumptive actual bias" which would be sufficient to satisfy the test in Mirabelli, supra.

[17]            Hence, the applicants submit that the correct approach under Hnatiuk would call for the Appeal Board to assess whether a reasonable apprehension of bias existed, and if so, to determine if the surrounding circumstances gave rise to a presumptive actual bias on a balance of probability.

[18]            The respondent submits that despite the fact that the Board did not explicitly refer to the "presumptive actual bias" standard, its analysis of the issue was consistent with the requisite test for bias. The Appeal Board's conclusion that the selection process was not biased against the applicants was based on a review of all of the circumstances of the case and thus is correct in law.

[19]            I agree with the applicants that the Appeal Board did not refer to the "presumptive actual bias" standard. Nevertheless, I do not think that the Board's omission of the exact term "presumptive actual bias" is fatal to its understanding and application of the test or its ultimate findings. After a careful review of its reasons, I am satisfied that its analysis of the issue was consistent with the requisite test.

[20]            With respect to Mr. Fox, the Appeal Board determined that even if there may have been a reasonable apprehension of bias on the part of the applicant Fox, there was no independent evidence that Mr. Fox was improperly or unfairly screened from the competition. In other words, though the applicants had demonstrated a reasonable apprehension of bias in reference to his being screened out of the competition, he did not establish the second half of the test as established in Hnatiuk, or whether on a balance of probabilities the evidence and all of the circumstances surrounding the competition led to a presumption or inference that bias affected the outcome of the competition.

[21]            The Board found that if the applicant Fox actually did have the requisite experience in the management of financial resources, it was truly unfortunate that he did not place such experience clearly in his resume. All other candidates who were screened in made mention of experience in financial resources, unlike the applicant Fox. I agree with this finding. The onus is on the applicant to establish that he or she has the requisite qualifications. It is not the responsibility of the interviewer to bolster an applicant's resume or further investigate its contents. Indeed, it would be unfair to other candidates to screen in an applicant who did not have the foresight to properly state his or her qualifications, merely because the person in charge of filling the position had a personal relationship with the candidate or personal knowledge of their qualifications.

[22]            The Board also correctly assessed the allegations of bias forwarded by Mr. Ford. The Board determined, on close examination of the application process, such as the availability of required answer materials to all candidates; a detailed and consistent marking system; the competency of the selection board; and the unbiased choice of questions, that there was no evidence that Mr. Murdock had been given any unfair advantage over other candidates from acting in the position in question prior to being assessed or through the use of an unfair selection process. Nor was there evidence that he did not have the requisite qualifications for the position, or that his appointment was irregular.

[23]            It is useful to note the role of the Appeal Board, as articulated in the decision of Ratelle v. Canada (Public Service Commission, Appeals Branch) (1975), 12 N.R. 85, at para. 3:

... The function of the Appeal Board is to hold an inquiry in order to determine whether the Selection Board made its choice in such a way that it was a "selection according to merit". If the Appeal Board concludes that the Selection Board met this requirement, it must dismiss the appeal even if it is of the opinion that, had it been responsible for the task entrusted to the Selection Board, the result might have been different. If a Selection Board has performed its duty in accordance with the Act and regulations and has made an honest effort to choose the most deserving candidate, then an Appeal Board would be exceeding its authority if it allowed the appeal from the decision of the Selection Board on the grounds that the latter had not availed itself of the means considered by the Appeal Board to be most appropriate for the performance of its duty.

As noted in Madracki v. Canada, [1986] F.C.J. No. 727 (C.A.)(QL), this is naturally predicated on the selection board having performed its duty in accordance with the Act and its regulations. After a careful review of the decision of the Appeal Board, I find that it did fulfill its function in determining that the selection board made its choice according to merit and performed its duty in accordance with the Act and regulations. Though the Appeal Board misstated the correct test to be used to determine bias, it did fulfill its role in determining that the merit principle had been adhered to, and it did ultimately apply the correct test of presumptive actual bias.

[24]            In sum, while the Board did not use the most recent phraseology applicable to the merit test, it adhered to those principles nonetheless, and in my opinion, its decision would have been the same even if the presumptive actual bias test had been articulated clearly. This was a mistake in form, not content. It would be a waste of adjudicative time and resources to refer this matter back to the Appeal Board for redetermination.

            B.          Did the Appeal Board err in its analysis of pre-selection, or rely on irrelevant considerations or fail to consider relevant considerations in its analysis of pre-selection?

[25]            The applicants submit that though they both alleged before the Appeal Board that Mr. Murdock had been pre-selected and received an unfair advantage in the competition, such allegations were largely ignored by the Appeal Board, notwithstanding the fact that the Federal Court of Appeal in Canada (Attorney General) v. Pearce, [1989] 3 F.C. 272, determined that an Appeal Board did not err in law in concluding that an assignment in combination with a selection process that gave an unfair advantage to the candidate assigned to the position could compromise the application of the merit principle.

[26]            The respondent submits that the Appeal Board reasonably rejected the allegation that Mr. Murdock was pre-selected or unfairly advantaged in the process. The Board properly assessed the evidence and concluded that the fact that he had acted in the position prior to the competition did not give him an unfair advantage in either the knowledge exam or the assessment of his abilities and personal suitability. They did not ignore evidence of irregularities before and during the selection process, or improperly consider evidence regarding the applicants' failure to appeal the acting appointment of Mr. Murdock to the position at issue.

[27]            I agree with the applicants that the appointment of a candidate to a position he has already occupied on an acting basis for approximately a year, by virtue of a process other than a competition, could reasonably give rise to a concern of pre-selection and an infringement of the merit principle. In such a situation it is reasonable to question whether the qualifications for the posting and the knowledge testings were structured to ensure that the current occupant of the position did not lose the said position. It is also reasonable to wonder if one who has occupied a position previously may be in a better position to respond to interview questions, meaning that the most knowledgeable candidate, as opposed to the best candidate, would be appointed.

[28]            However, in the present instance, on my review of the evidence and the decision itself, I am satisfied that the Appeal Board closely scrutinized the interview process and adequately addressed each of the issues raised by the applicants.

[29]            The applicants submit that the Board erred when it ignored evidence that Mr. Murdock's placement in the acting position was irregular and the Board compounded this error when it concluded that the allegation of pre-selection should be rejected because no appeals were presented against the final extension of Mr. Murdock's acting appointment in January 2002. I disagree with the applicants. I do not find that it was unreasonable for the Board to infer that the applicants' failure to appeal the extension of Mr. Murdock's acting appointment undermined the legitimacy of the suggestion that the appointment was irregular. Any irregularities that may have existed in the placement of Mr. Murdock could have been addressed in the context of an appeal of that position.

[30]            Furthermore, this was not the sole reason for rejecting the allegation of pre-selection. In its decision, the Appeal Board acknowledged that Pearce, supra, recognized that acting in a position previous to a competition for that same position could impact on the merit principle, if it was demonstrated that the selection process gave an unfair advantage to the applicant, for example, through the use of biased pre-set questions or qualifications.

[31]            The Board found on close examination of issues such as the availability of required answer materials to all candidates; a detailed and consistent marking system; the competency of the selection board; and the unbiased choice of questions, that there was no evidence that Mr. Murdock had been given any unfair advantage over other candidates through the use of an unfair selection process. Such findings are not unreasonable under the circumstances, and the Appeal Board did not err in its rejection of the allegation of pre-selection or bias, as there was no evidence that the selection process was in any way unfair.

[32]            Finally, the applicants submit that the Appeal Board ignored the fact that harassment complaints against Mr. Murdock were summarily rejected by Mr. McLarty, and neglected to address the fact that Mr. Murdock was allowed to write the knowledge exam several days after the other applicants.

[33]            Firstly, the Board did address the issue of harassment complaints against Mr. Murdock under the consideration of Mr. McLarty's assessment of Mr. Murdock's personal suitability. The Board stated "the fact that others may have filed complaints about Mr. Murdock's conduct does not mean that Mr. McLarty cannot form his own opinions of Mr. Murdock's qualifications as the one who is primarily responsible for supervising him." Hence, the Board clearly did turn its mind to the fact that complaints had been made against Mr. Murdock, and it accepted that the positive opinion of his direct supervisor was a reliable and acceptable source of character assessment and did not have to be in concert with the opinions of those who may have filed complaints.

[34]            With regard to the date Mr. Murdock wrote his exam, I do not find that this in itself supports an allegation of pre-selection or bias, and the Board's failure to address this issue is not a material error.

[35]            In conclusion, on my review of the evidence and issues before the Appeal Board, and the decision itself, I am satisfied that the Appeal Board closely scrutinized the interview process and adequately addressed each of the issues raised by the applicants. The Appeal Board did not err in its analysis of bias and pre-selection, nor did it err by relying on irrelevant considerations or failing to consider relevant considerations.

[36]            For the reasons set out above, the application for judicial review is dismissed. No costs.

                                               ORDER

THIS COURT ORDERS that the application for judicial review is dismissed. No costs.

                                                                 "Danièle Tremblay-Lamer"

J.F.C.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-143-03

STYLE OF CAUSE: John Fox and John Ford

                                                 - and -

Attorney General of Canada and Mark Murdock

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                   June 22, 2004

REASONS FOR ORDER

   AND ORDER :     Madam Justice Danièle Tremblay-Lamer

DATED:                     June 30, 2004

APPEARANCES:

Mr. Andrew Raven                                            FOR APPLICANTS

Ms. Anne Turley &

Ms. Ramona Rothschild                                                 FOR RESPONDENTS

SOLICITORS OF RECORD:

RAVEN, ALLEN, CAMERON,

BALLANTYNE & YAZBECK

Ottawa, Ontario                                                FOR APPLICANTS

Morris Rosenberg

Deputy Solicitor General of Canada                   FOR RESPONDENTS