Date: 20040426
Docket: T-1621-00
Citation: 2004 FC 614
IN THE MATTER OF an appeal under section 21 of the Public Service Employment Act, R.S.C. 1985, c.P-33, as amended by section 16 of the Public Service Reform Act, S.C. 1992, c. 54
AND IN THE MATTER OF the appeals of Michael K. Warren, Lan Hoang, Kenneth Ko and Gordon L. Hiseler following a Corrective Measures Promotion Board exercise following allowed appeals for the promotion of some 78 FS-01 officers in the Political/Economic Stream to the FS-02 level
BETWEEN:
GORDON L. HISELER and MICHAEL K. WARREN
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of Chairperson Gaston Carbonneau, of the Public Service Commission Appeal Board (the "Appeal Board"), wherein he dismissed the appeal of the Applicant Gordon L. Hiseler ("Mr. Hiseler") and dismissed in part the appeal of the Applicant, Michael K. Warren ("Mr. Warren"), (collectively the "Applicants"), from a decision of a Corrective Measures Board established by the Public Service Commission in response to an earlier Public Service Commission Appeal Board decision. The decision under review is dated the 12th of September, 2000.
[2] The Applicants seek an order allowing their application for judicial review, setting aside the decision under review and referring the matter back to a differently constituted Appeal Board on such terms and conditions as this Court deems just, but including a term or condition that their promotions to the Foreign Service Officer (FS-02) level, which both Applicants have subsequently achieved, be made retroactive to the 1st of December, 1998. The Applicants also seek their costs of the Application.
BACKGROUND
[3] Both Applicants were, at all relevant times, employed as Foreign Service Officers with the Department of Foreign Affairs and International Trade ("DFAIT") and occupied positions classified at the FS-01 level prior to the 1st of December, 1998.
[4] In April of 1998, DFAIT determined to gradually phase out the FS-01 classification with jobs classified at that level eventually becoming FS-02 level positions. DFAIT created an "FS-01 Career Program" to give those then occupying positions classified at the FS-01 level the opportunity to advance to positions with the FS-02 classification. Those within the Program, if they passed minimum screening criteria, would then advance to an internal promotion competition to determine promotions according to individual merit. The competition was scheduled to be held in October of 1998.
[5] The Promotion Board used selection standards including years of service, experience, performance, abilities, personnel suitability and knowledge. In total, fifty-four (54) officers in positions classified at the FS-01 level were promoted to positions at the FS-02 level with effect from the 1st of December, 1998. Mr. Hiseler was among those promoted. Mr. Warren was not. Mr. Warren and others who were also not promoted appealed the results of the promotion competition to the Public Service Commission Appeal Board (the "First Appeal" and the "First Appeal Board").
[6] Chairperson Yves Nadeau of the First Appeal Board, allowed the appeal. In relation to Mr. Warren, he found that the Promotion Board had been obligated to conduct reference checks based upon the inconsistent content of Mr. Warren's appraisal reports. He directed that the reference checks should extend to requests for specific examples and details to support general statements in Mr. Warren's appraisal reports.
[7] In response to Chairperson Nadeau's decision, the Public Service Commission (the "PSC") wrote to DFAIT directing establishment of a new Selection Board or Promotion Board (the "Corrective Measures Board") to re-assess all participants in the original competition on the basis of relative merit. The Corrective Measures Board was directed to only make decisions based on complete and conclusive evidence and was therefore obliged to conduct reference checks where gaps or contradictions were evident on the face of appraisal reports. Except for such reference checks, the Corrective Measures Board was directed to review no new evidence.
[8] In accordance with the directions from the PSC, DFAIT established a Corrective Measures Board and prescribed its mandate. After an initial screening, each Corrective Measures Board member was directed to review each candidate's most recent three (3) annual performance appraisals and to score the relevant officer for performance, knowledge and potential. Members of the Corrective Measures Board were then instructed to meet to reach a consensus on scores for each officer. A minimum of 180 points out of a possible 300 was established as the promotion level using a designated point system.
[9] As a result of the work of the Corrective Measures Board, 64 officers were promoted to positions at the FS-02 level. Neither Mr. Hiseler nor Mr. Warren achieved sufficient points to qualify for promotion. In the result, four (4) officers, including Mr. Hiseler and Mr. Warren, once again appealed, this time to the Appeal Board chaired by Gaston Carbonneau.
THE DECISION UNDER REVIEW
[10] As earlier noted, in the decision under review, the Appeal Board dismissed Mr. Hiseler's appeal and allowed Mr. Warren's appeal in part and dismissed it in part.
[11] With respect to Mr. Hiseler, the Appeal Board concluded:
In sum having regard to the answers given by the Department in its response to the general allegations in Exhibit D-11 and its responses found in Exhibit D-18 and D-19, the merit principle has not been breached by the Board in its assessment of Mr. Hiseler's qualifications and potential.
[12] With respect to Mr. Warren, the Appeal Board wrote:
The new Promotion Board made the identical mistakes made by the first Promotion Board.
Later in its decision, the Appeal Board continued:
...by law the Promotion Board was obligated to conduct reference checks in the case of Mr. Warren.
...
...I fail to understand why this finding [a finding of the first Appeal Board directly relevant to Mr. Warren], indeed, the complete previous Appeal Board decision was not brought to the attention of [the Chairman of the Corrective Measures Board], who, without his knowledge, was legally bound by it. The [Corrective Measures Board] had no right to disturb that finding. Only the Federal Court of Canada could have done so. On this ground alone I must allow the appeal of Michael K. Warren.
The Appeal Board dismissed all other allegations of error urged before it on behalf of Mr. Warren.
THE ISSUES
[13] In their factum, the Applicants describe the issues on this application for judicial review in the following terms:
1) What is the appropriate standard of judicial review of the [decision under review]?
2) Against the appropriate standard of judicial review, did the [Appeal Board] make any reviewable error in arriving at [the] decision?
3) In particular, did the [Appeal Board] err in failing to find that the Corrective Measures board had not carried out its functions in accordance with the Nadeau decision [the decision of the first Appeal Board], in that:
a) not having read the Nadeau decision, the Corrective Measures board established and applied incorrect tests and standards for assessing officers during the Second Exercise [the Corrective Measures Board process];
b) as DFAIT had not properly advised the Corrective Measures board about the Nadeau decision, it could not correctly carry out its mandate; and
c) both the Corrective Measures board and the Carbonneau board were bound by the findings of fact made by the Nadeau decision for which the Corrective Measures board had been constituted, including but not limited to those relating to the quality of the appraisal reports.
[14] Counsel for the Respondent endorsed the first and second of the Applicants' issue statements and noted that the third of the Applicants' issue statements is essentially encompassed within the second. Counsel for the Respondent added as an issue the question of whether Mr. Warren's appeal should be dismissed on the basis that he was, in the end result, successful on the decision under review and in all other respects sought only to appeal from the reasons for the decision under review and not from the decision itself. Finally, both counsel spoke to the issue of remedy if the Applicants were to be successful, and to the issue of costs.
RELEVANT LEGISLATIVE PROVISIONS
[15] Section 10 and the relevant portions of section 21 of the Public Service Employment Act read 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.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
...
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.
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats.
...
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.
...
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.
...
(2) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the appointment; or
(b) if the appointment has not been made, make or not make the appointment.
...
(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_:
a) si la nomination a eu lieu, la confirmer ou la révoquer;
b) si la nomination n'a pas eu lieu, y procéder ou non.
...
(3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
(4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit.
...
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
...
ANALYSIS
a) Standard of Review
[16] In Attorney General of Canada v. Bormais, I wrote at paragraphs [11] to [15]:
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)..., 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.
I am satisfied that the same could be said with respect to the issue now before the Court.
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,... . 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;
...
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.
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. [citations omitted]
[17] With respect to the last quoted paragraph, I cited Dr. Q v. College of Physicians and Surgeons of British Columbia. Paragraph [21] of the reasons for that decision reads in part as follows:
...In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to determining the standard of judicial review of administrative decisions. Bastarache J. affirmed that "[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed" ... . However, this approach also gives due regard to "the consequences that flow from a grant of powers" ... and, while safeguarding "[t]he role of the superior courts in maintaining the rule of law"..., reinforces that this reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts' constitutional duty to protect the rule of law. [emphasis added, citations omitted]
In light of the foregoing quotation, I will briefly turn to a pragmatic and functional analysis.
[18] The Public Service Employment Act contains no privative clause or statutory right of appeal with respect to decisions of Appeal Boards and, indeed, at section 21.1, specifically contemplates judicial review of those decisions. Further, nothing of the face of the Public Service Employment Act contemplates particular expertise on the part of those performing the functions of Chairpersons of Appeal Boards.
[19] An assessment of the purpose of the Public Service Employment Act reveals that its purpose is to protect the integrity of the Public Service and ensure application of the merit principle as reflected in section 10 of the Act. Section 21 of the Act, providing for Appeal Boards and designating their mandates, is central to the purpose of the Act. The purpose of the Act and of section 21 in the context of the Act as a whole suggests considerable deference. That being said, the issue under review, the question of whether the measures taken by the Corrective Measures Board resulted in appointments according to merit, is judicial in nature and therefore militates against deference. In the result, the "purpose analysis" counsels neither for great deference nor exacting scrutiny.
[20] Against the foregoing brief analysis, as in Bormais, I reach the conclusion that the appropriate standard of review on this application is correctness because, I am satisfied, and more will be said about this later, that the sole issue on this application to which selection of an appropriate standard of review applies is the issue of whether or not the decision under review resulted in selections for appointment according to merit.
b) Mr. Warren's status to apply for judicial review of the decision under review
[21] As noted earlier in these reasons, Mr. Warren was essentially successful at the hearing resulting in the decision under review in that his appeal was allowed, albeit not on all of the grounds, or even most of the grounds, presented on his behalf. In GKO Engineering v. Canada, Justice Rothstein wrote at paragraphs [2] and [3]:
What is at issue on a judicial review is the judgment of the lower Court or tribunal under review, not the reasons for judgment. An applicant for judicial review seeks to have the matter remitted for redetermination leading to a different disposition by the lower Court or tribunal.
A respondent is normally satisfied with the disposition by the lower Court or tribunal. Accordingly, the respondent has no reason to seek judicial review of that judgment. However, the respondent may not agree with all the reasons of the lower Court or tribunal. Unless the respondent seeks a different disposition, however, the respondent has no basis to bring its own judicial review application. [emphasis added]
[22] Mr. Warren could hardly be said, on the facts of this matter, to be seeking a different disposition if this matter were remitted to the same or a differently constituted Appeal Board. If he were to do so, his position would be perverse given his success before the Appeal Board the decision of which is under review. Rather, I interpret what Mr. Warren is seeking to be a determination that the Appeal Board was correct on the ground on which it allowed his appeal but was incorrect on all or certain of the positions presented on his behalf that were not adopted by the Appeal Board. In essence, on this judicial review, Mr. Warren supports the decision of the Appeal Board that is under review but seeks to vary the reasons for that decision. In effect, he seeks judicial review of the Appeals Board's reasons, not its disposition.
[23] On the authority of GKO Engineering, I conclude that judicial review of the decision under review is not open to Mr. Warren. In the result, on this ground alone, his application for judicial review will be dismissed.
c) Reviewable error - Selection according to merit
[24] As earlier noted, the first Appeal Board decision, that is to say the "Nadeau decision", set aside the results in the initial reclassification process. In the result, in the words of subsection 21(3) of the Public Service Employment Act, given the fact that the Appeal Board, through the Nadeau decision, determined that there was "...a defect in the process for the selection of a person [or persons] for appointment under [the] Act, ...", the Public Service Commission was mandated to "...take such measures as it considers necessary to remedy the defect." The Public Service Commission chose to direct establishment of a Corrective Measures Board and to confer a particular mandate on that Board. That the mandate conferred on that Board might not have been entirely responsive to the Nadeau decision is, I am satisfied, not relevant.
[25] In Lalonde v. Canada (Attorney General), I wrote at paragraph [25]:
I reach a similar conclusion with regard to the allegation of error in law for failure to provide three (3) additional marks as conceded before the first Appeal Board. Provision of three (3) additional marks in favour of the Applicant was, for whatever reason, not adopted as one of the corrective measures directed by the Public Service Commission. The decision here under review was directed towards a determination of whether the corrective measures ordered had been appropriately implemented. The Appeal Board responded to that issue. I find that it was under no obligation to look behind the corrective measures ordered.
[26] In Lo v. Canada (Public Service Commission Appeal Board), I found that:
Thus, the fact that Ms. Steadman had been transferred and subsequently resigned did not render the Public Service Commission powerless to take corrective action which, in the circumstances, was only limited by its imagination, if the Board found there to be a defect in the process for the selection of Ms. Steadman.
...
In the result, it would have been open to the Public Service Commission to utilize subsection 21(3) as authority for such measures as it considered necessary to remedy the defect, notwithstanding the fact that Ms. Steadman had been transferred and subsequently resigned.
[27] While the Court of Appeal tempered what it apparently considered to be my excessive language in an appeal of the Lo decision when it wrote:
We do not agree with the motions judge's view that the addition of subsection 21(3) in 1993 gave the Commission the power "to take corrective action which, in the circumstances, was only limited by its imagination". Subsection 21(3), even more so when read together with subsection 21(4), also a new provision, gives the Commission only the power to remedy a defect in the impugned selection process; it does not give the Commission any more power [than] it already had with respect to the appointment itself. To suggest, as does the motions judge, that the Commission is now given the power, through the appeal process, to take any corrective action in favour of the unsuccessful candidate is, in our respectful view, to ignore the very limited purpose of the appeal process. The Commission has not been transformed into a tribunal empowered to pronounce declaratory judgments or to entertain claims in damages or whatever by an unsuccessful candidate.
I am satisfied that it did not detract from the principle that the appropriate response to an Appeal Board decision to assure appointments according to merit lies at the discretion of the Public Service Commission. In the result, the position urged on behalf of the Applicants that the Corrective Measures Board established by the Public Service Commission, and mandated by that Commission, was bound by the Nadeau decision and obliged to implement its findings to the letter, simply cannot succeed. I am satisfied that this position is borne out by the decision of my former colleague McKeown J. in Maassen v. Canada (Attorney General), where he wrote at paragraph [16]:
The Applicants' position is that subsection 21(3) demands that the Commission take corrective measures once it has revoked an appointment that has been successfully appealed to the Appeal Board. The Applicants rely on a previous Appeal Board decision, ..., as meaning that the Commission was required to take corrective measures in accordance with the Appeal Board decision. However, in my view subsection 21(3) simply states that the Commission is empowered to remedy a defect determined by the Appeal Board, but does not require the Commission to do so. As stated earlier, [by] subsection[s] 21(2) and 21(3), the only action the Commission is required to take upon successful appeal against appointment is to revoke such appointment. [citation omitted]
[28] Against the foregoing authorities, I am satisfied that, in the decision under review, the Appeal Board was correct when it concluded that, in all respects except as previously noted with respect to the decision of the Corrective Measures Board relating to Mr. Warren, appointments based on the measures taken by the Corrective Measures Board did not result in a selection or selections for appointment otherwise than in accordance with the merit principle.
d) Other issues
[29] Given the results of my analysis to this point, other issues raised on behalf of the Applicants, including alleged reviewable errors on the part of the Appeal Board in the decision under review and appropriate reliefs in favour of the Applicants, need not be dealt with. In particular, I regard the paragraph quoted from the reasons of my former colleague McKeown J. in Maassen, supra, as being dispositive of the urging on behalf of the Applicants of an Order that, in referring this matter back to an Appeal Board, I should direct that appointment of the Applicants to positions at the FS-02 level should be made retroactive. If such authority were to exist, it would exist in the Public Service Commission and not in the Appeal Board.
CONCLUSION
[30] For the foregoing reasons, this application for judicial review will be dismissed. Counsel for the Respondent requested costs. I am satisfied that it is appropriate that costs should follow the event. Thus, an Order will go in favour of the Respondent for costs against the Applicants on the ordinary scale.
_________________________
J.F.C.
Ottawa, Ontario
April 26, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1621-00
STYLE OF CAUSE: Gordon L. Hiseler and Michael K. Warren v. The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 5, 2004
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON
DATED: April 26, 2004
APPEARANCES:
Mr. Joseph W. Griffiths FOR THE APPLICANTS
Mr. Derek Rasmussen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Goldberg, Kronick & Stroud LLP FOR THE APPLICANTS
Ottawa, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of
Canada
[2004] F.C.J. No. 253, (Q.L.), (not cited before me).
[2001] F.C.J. No. 369 (Q.L.), (F.C.A.).
[2003] F.C.J. No. 868, (Q.L.), (not cited before me).
[1997] F.C.J. No. 198, (Q.L.), (not cited before me).
[1997] F.C.J. No. 1784, (Q.L.),(F.C..A.),(not cited before me).
[2001] F.C.J. No. 961,(Q.L.), (not cited before me).
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