Ali v. Canada (Attorney General), 2004 FC 592

                                                                                                                                  Date: 20040422

                                                                                                                             Docket: T-1027-03

                                                                                                                        Citation: 2004 FC 592

Ottawa, Ontario, April 22, 2004

PRESENT: THE HONOURABLE MR. JUSTICE SHORE

BETWEEN:

                                                                  HANNAT ALI

                                                                                                                                            Applicant

                                                                           and

                                         THE ATTORNEY GENERAL OF CANADA

                                              DEE GREEN AND SANDI WRIGHT

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                All the issues under review stem from the following central issue:

Was the selection board that interviewed the applicant (the candidate) properly constituted to assess the candidate fairly?

Background

[2]                This is an application pursuant to section 18.1 of the Federal Courts Act^[1] for judicial review of a decision of the Public Service Commission Appeal Board ("the Appeal Board") dismissing the applicant's appeal respecting proposed appointments to a Committee Advisor position.

[3]                Mr. Ali, the applicant, is requesting that the matter be returned to the selection panel for the competition to be held in accordance with the Public Service Employment Act^[2] and to be based on the merit principle.

ALLEGATIONS (Facts)

[4]                Mr. Ali applied for a Committee Advisor position in the Department of Human Resources Development Canada. The three-person selection panel invited four candidates, including Mr. Ali, to an interview.

[5]                The interview was conducted in French, at Mr. Ali's request. For the interview, a human resources manager replaced one of the members of the selection panel because she is Francophone. In addition, one of the members of the panel who was present at the interview did not assess the applicant because she did not possess a sufficiently high level of linguistic proficiency to enable her to do so.

[6]                Mr. Ali was not advised that this member was acting only in the capacity of an observer and would not be participating in his assessment.

[7]                The other three candidates were assessed by the original members of the panel.

[8]                The other three candidates were successful, but Mr. Ali was not.

COMMISSION DECISION

[9]                Mr. Ali appealed the selection panel's decision, alleging that the level of French-language proficiency of the selection panel chairperson was insufficient to assess his candidacy. Mr. Ali also submitted other allegations, but they are not at issue in the present case.

[10]            On the issue of the selection panel's competence to assess Mr. Ali, the Appeal Board found that since the member did not participate in the assessment of Mr. Ali, her lack of proficiency in oral interaction could not have prejudiced him.^[3]

[11]            With regard to the other allegations, the Appeal Board found that "while there were inconsistencies in the selection panel's assessment¼it is my opinion that these inconsistencies did not serve to alter the final result or demonstrate that the proposed appointments would be contrary to the merit principle".^[4]

ISSUES

[12]            What is the applicable standard of review of the selection panel's decision?

[13]            Did the Appeal Board err in finding that the merit principle was respected when the composition of the panel was changed for Mr. Ali's interview?

ANALYSIS

What is the applicable standard of review of the selection panel's decision?

[14]            Mr. Ali submits that the issue raised in his case stems from whether the merit principle was respected. Following the decisions in Boucher v. Canada (Attorney General),^[5] Fournier v. Canada (Attorney General)^[6] and Buttar v. Canada (Attorney General),^[7] the standard of review is correctness.

[15]            The respondent asks whether the panel member whose proficiency in French was insufficient participated in the assessment of Mr. Ali. This being a question of fact, the standard of review is patently unreasonable.^[8]

[16]            Mr. Ali does not dispute the Board of Appeal's finding that the selection panel member who did not possess knowledge of the French language did not, in fact, participate in his assessment; he alleges, rather, due to the fact that the member did not participate in his assessment violates the merit principle. Therefore, the standard of review is correctness.

Did the Appeal Board err in finding that the merit principle was respected when the composition of the selection panel was changed for Mr. Ali's interview?

[17]            Mr. Ali alleges that having a member on the panel who could not communicate with him in French was, in effect, a violation of the merit principle because Mr. Ali was not assessed in the same way as were the other candidates. In his support, Mr. Ali cites Buttar^[9] and section 9 of the Public Service Employment Regulations.^[10]

[18]            It is settled statute and case law that all of the members of a selection panel must possess a sufficient level of language proficiency to allow effective communication with the candidate in the official language in which the candidate wishes to be assessed.^[11] Given this, the respondent claims that the panel did not err in finding that the merit principle was respected, since the panel member who did not possess a French language capacity did not participate in Mr. Ali's assessment.

[19]            While the applicant made no submissions with respect to the panel's decision to substitute a member for his assessment, the respondent submits that this decision did not violate the merit principle; the respondent contends that the fact that one of the members participated in the assessment of all four candidates is sufficient to rebut an allegation that the merit principle was violated. The respondent cites in his support Brothers v. Canada (Attorney General).^[12]

[20]            The Appeal Board erred in finding that the selection panel respected the merit principle even though the composition of that panel was changed for Mr. Ali's interview.

[21]            This Court has established that in order for the merit principle to be respected, the selection panel must assess and rank all candidates in the same manner.^[13] It has also observed that the assessment of candidates is subjective and "in many instances, simply a matter of opinion".^[14]

[22]            In keeping with the principle, the composition of a selection panel may not be changed to interview different candidates without violating the merit principle. In Brothers, Blais J. held that the merit principle was not violated even though eight different teams assessed the candidates during a selection process. However, Brothers is different from the present case. In Brothers, Blais J. emphasized that the selection panel had gone to great lengths in order to minimize the selection's element of subjectivity. He said:

The evidence shows that before the Selection Board set up the simulation process the assessors spent two days developing the check lists that would be used. Throughout the two weeks of assessment, several discussions took place concerning the assessment of candidates and the relative weight of the issues and how they should be addressed by the team. Members of the assessment teams observed each other marking candidates and reviewed particular assessments to help understand how candidates were assessed.

The fact that there is a certain element of subjectivity does not in my opinion lead to great inconsistencies. Even if the same members assessed each candidate, the element of subjectivity remains. From the evidence tendered, it seems that the subjectivity element was minimal.

The evidence shows that the candidates were assessed in the following manner. The candidates' notes were read aloud to ensure that all team members agreed about the issues addressed by the candidate. Then on an element-by-element basis, the team reviewed the definition of element being evaluated along with the questions found in the assessor's manual that related to the element and then referred individually to the dimension rating scale that applied to that particular element. Individually, each assessor rated the element. At this point, assessors were asked to reveal the scoring and a discussion followed in order to arrive to a consensus score and rating board. This process was repeated for each element.^[15]

Brothers does not say that changing the composition of a selection panel for the assessment of certain candidates never violates the merit principle. What it does say is that the merit principle is respected when the selection panel, or its assessors, minimize the subjectivity of the assessment where the assessment is not always conducted by the same persons.

[23]            There is no evidence in the present case that the selection panel member who was replaced communicated with her replacement to satisfy herself that their criteria for assessing the candidates were similar. Consequently, the selection panel violated the merit principle because Mr. Ali was not assessed in the same manner as the other three candidates.

[24]            Moreover, the fact that the selection panel was reduced from three to two members for Mr. Ali's interview is problematic. Mr. Ali did not have the benefit of the consideration and opinions of three members. For this reason, Mr. Ali was assessed differently from the other three candidates, and the merit principle was not respected.

[25]            A further question was entertained at the hearing: the fact that the application for judicial review was made thirty-seven (37) days after the date on which the Appeal Board decision was mailed to the applicant (see Annex 2, which consists of two short documents filed the day after the hearing at the request of the Court, on the day of the hearing).

[26]            Section 18.1(2) of the Act specifies: "An application for judicial review¼shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal...".

[27]            In addition, rule 141(1) of the Federal Court Rules, 1998^[16] states: "Service of a document by ordinary mail is effective on the tenth day after it was mailed".

[28]            In the present case, considering the brevity of the delay involved, the Court deems that the 30-day rule was adhered to because there was no clear evidence as to the day on which the decision was mailed nor the number of days it took to reach the applicant.

CONCLUSION

[29]            The application for judicial review is allowed.

                                                                        ORDER

THE COURT ORDERS that the matter be sent back to the selection board with a direction to hold the competition in accordance with the Public Service Employment Act and in upholding the merit principle.

"Michel M.J. Shore"

Judge

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

ANNEX 1

ANNEX 2

Engelmann Gottheil

BARRISTERS AND SOLICITORS - AVOCAT(E)S

Reply to: Michelle Flaherty

Email: mflaherty@eglaw.ca

BY COURIER

April 20, 2004

Federal Court of Canada

90 Elgin Street

2^nd Floor

Ottawa ON

K1A OH9

Attention: The Honourable Mr. Justice Shore

Subject: Hannat Ali v. Attorney General of Canada -Application for judicial review -Docket T-1027-03, Our file No. 23103

Mr. Justice Shore:

As requested during the hearing of the above-referenced matter, the Applicant herewith files additional submissions in writing concerning the limitation period for the Notice of Application.

POSITION OF THE PARTIES

Section 18.1(2) of the Federal Courts Act, R.S. 1985, c. F-7 ("the Act") provides that an application for judicial review "shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal".

In the case at bar, the Respondent argues that the Notice of Application was made 37 days after the decision and therefore it is seven days after the end of the limitation period prescribed by the Act.

                                                                             2

The Applicant's position is that the Notice of Application was made within 30 days after communication of the Appeal Board decision.

The parties agree that the Appeal Board decision was sent to Mr. Hannat by ordinary mail and that the limitation periods prescribed by the Act run from the time the decision was communicated to Mr. Hannat.

THE APPLICANT OBSERVED THE STATUTORY LIMITATION

There is no evidence before the court that Mr. Hannat received the Appeal Board decision within seven days after the decision was made. On the contrary, Mr. Hannat, who was then representing himself, attended at court, and the clerk, who has a responsibility to ensure that the Rules are followed, agreed to allow him to file his Notice of Application.

Mr. Casanova's submission that the decision was sent by ordinary mail on May 21 is not supported by an affidavit. Mr. Casanova merely produced an email message for the court, and the Applicant had no opportunity to cross-examine the writer of the email message on his statement of May 21, 2003, at 3:19 p.m., that "the decision is being mailed to the party on May 21, 2003". There is no evidence whatsoever before the court that the document was in fact put in the mail on May 21, 2003.

Even if the letter was mailed on May 21, 2003, which has not been established, the Respondent has not shown that Mr. Hannat received it within the following six days. Although Mr. Casanova speculates that 97% of the time Canada Post delivers letters of this kind within four days, it is entirely possible that this particular document falls within the 3% of exceptions, where the letter is not delivered within four days.

For example, the Federal Court Rules recognize that when a document is sent by ordinary mail it may not be delivered for several days. Rule 141(1) states that "service of a document by ordinary mail is effective on the tenth day after which it was mailed".

We respectfully submit that there is no evidence before this Court that Mr. Hannat's Notice of Application was made after the limitation periods prescribed in section 18.1 of the Act. However, if it is the Court's opinion that the limitation periods were not observed, we submit that since it is a question of just a few days and the Crown has not

                                                                             3

shown that any harm was done, it would be wholly appropriate in the case at bar for the Court to extend this limitation period.

Respectfully submitted.

ENGELMANN GOTTHEIL

500-30 Metcalfe Street

Ottawa ON

K1P 5L4

Michelle Flaherty

Telephone: (613) 235-5327

Fax: (613) 235-3041

Counsel for the Applicant

cc. Richard Casanova

     Claude Archambault

Department of Justice               Ministère de la Justice

Canada                                     Canada

Bank of Canada Building

Room 1150, East Tower                        Telephone:       957-4853

23 Wellington Street                             Fax:                  954-1920

Ottawa, (Ontario)

KIA OH8

File No.: 2-365010

February 20, 2004

By Fax

ATTENTION: Justice Shore

Administrator

Federal Court of Canada

90 Elgin Street

Ottawa ON

KIA OH9

Dear Sir or Madam:

SUBJECT: HANNAT ALI v. ATTORNEY GENERAL OF CANADA

Docket: T-1027-03

Please find enclosed a copy of the Respondent's Supplementary Factum as well as evidence of service in the above-referenced matter, submitted pursuant to the Federal Court Rules, 1998.

Very sincerely yours

Richard Casanova

Counsel

Civil Litigation Section

Enclosures

Docket: T-1027-03

FEDERAL COURT

BETWEEN:

HANNAT ALI

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

AFFIDAVIT OF SERVICE

I, SANDRA McKINNON, Legal Assistant, of the City of Hull, in the Province of Quebec, AFFIRM as follows:

1.          I have served the Supplementary Factum of the Respondent, the Attorney General of Canada, on the Applicant by sending him a copy by fax on April 20, 2004, marked to the attention of Michelle Flaherty at Engelmann Gottheil (613) 235-3041.

Affirmed before me in the                                  )

City of Ottawa, in the Province of Ontario         )

this 20^th day of April 2004.                                 )          Sandra Mckinnon

Tania Teresa Tooke

a Commissioner, etc., province of Ontario,

for the Government of Canada,

Department of Justice,

Expires February 17, 2007

Docket: T-1027-03

FEDERAL COURT

BETWEEN:

HANNAT ALI

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

RESPONDENT'S SUPPLEMENTARY MEMORANDUM

I. SYNOPSIS

1.          At the hearing of the application for judicial review, Mr. Justice Shore asked the parties for submissions in writing with respect to the applicant's delay in failing his application for judicial review.

II. FACTS

2.          At paragraphs 10 and 11 of the Respondent's factum, it is alleged that:

On May 20, 2003, the Appeal Board dismissed the Applicant's appeal, finding that the appointments were made in accordance with the merit principle.

On June 27, 2003, thirty-seven days after the decision, the Applicant filed his Notice of Application for judicial review of the Appeal Board decision.

3.          The Respondent's argument is based on the evidence of record. The evidence before the Court is clear: the Appeal Board decision was handed down on Tuesday, May 20, 2003.

4.          The Notice of Application was stamped by an officer of the Registry of this Court on Friday, June 27, 2003.

5.          The Applicant produced an email message for the Court indicating that the decision was mailed to the Applicant on Wednesday, May 21, 2003.

6.          The Respondent further submits that it may be judicially noticed by the Court that when a letter is mailed in Ottawa to an address in the same city, that letter would in the vast majority of cases be delivered within a day or two. The decision surely arrived at the Applicant's address by Friday, May 23, 2003.

Canada (M.C.I.) v. 01ah, [2002] F.C.J. No. 785 (T.D.), at para. 9.

7.          Facts which are so notorious as not to be the subject of dispute among reasonable persons or are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy may be judicially noticed by the Court.

AstraZeneca Canada Inc. v. Apotex Inc. [2003] F.C.J. No. 1254 (T.D.), at para. 8.

8.          The Court has sufficient evidence to find that the Applicant filed his application for judicial review after the thirty-day period provided in subsection 18.1(2) of the Federal Court Act.

9.          The evidence shows that at least thirty-seven days passed between the date of the decision and the date of filing of the application. In the absence of a motion in this Court by the Applicant to extend the limitation period provided by statute, this Court must dismiss the application for judicial review.

Guérin v. Canada (Attorney General), [1996] F.C.J. No. 745 (T.D.), at paras. 7 and 10.

10.        The Respondent asks the Court to dismiss the application for judicial review, with costs.

April 20, 2004

Morris Rosenberg

Deputy Attorney General of Canada

Per:     Richard Casanova

Department of Justice

Civil Litigation Section

Bank of Canada Building, East Tower,

Room 1150

234 Wellington Street

Ottawa ON

KIA OH8

Tel.:    (613) 957-4853

Fax: (613) 954-1920

Counsel for the Respondent

To:       Administrator

Federal Court of Canada

Trial Division

?(Immigration)?

Lorne Building

90 Elgin Street

Ottawa ON

AND:    Engelmann Gottheil

500-30 Metcalfe Street

Ottawa ON

KIP 5L4

Michelle Flaherty

Tel: (613) 235-5327

Fax . (613) 235-3041

Counsel for the Applicant

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                       T-1027-03

STYLE OF CAUSE:                                       HANNAT ALI

v. THE ATTORNEY GENERAL OF CANADA

DEE GREEN AND SANDI WRIGHT

PLACE OF HEARING:                                 OTTAWA, ONTARIO

DATE OF HEARING:                                  APRIL 19, 2004

REASONS FOR ORDER

AND ORDER:                                                SHORE J.

DATE OF REASONS FOR

ORDER AND ORDER:                                APRIL 22, 2004

APPEARANCES:

Michelle Flaherty                                               FOR THE APPLICANT

Richard Casanova                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

ENGELMAN GOTTHEIL                                FOR THE APPLICANT

Ottawa (Ontario)

MORRIS ROSENBERG                                  FOR THE RESPONDENT

Deputy Attorney General of Canada