Canada (Attorney General) v. Abidakun, 2001 FCT 812

Date: 20010723

Docket: T-956-99

Neutral Citation: 2001 FCT 812

BETWEEN:

         THE ATTORNEY GENERAL OF CANADA

                                          Applicant

                      - and -

RUFUS O. ABIDAKUN, JOHN GLOFCHESKIE, EDWARD L. GOMES,

RUDY QUADRINI, MIRZA A. DHARASSI, ANTONIO R. FERNANDES,

SALAH BAYOUMI, DOMINGO TIU, SIU LAI, PETER J. ROBINSON,

            B. DEWAN, LALIT P. LAKHANI

                                       Respondents

                 REASONS FOR ORDER

ROULEAU, J.

[1]     This is an application for judicial review of the decision of J.R. Ojalammi, Chairperson of the Public Service Commission Appeal Board, dated April 26, 1999, wherein he ordered disclosure of certain documents and materials associated with the Middle Manager In-Basket Exercise, a standardized test used by Revenue Canada to evaluate candidates in a closed competition.

[2]    The facts leading up to this application are as follows. The respondents were candidates in three closed competitions held by Revenue Canada to staff Team Leader, Audit positions classified at the AU-04 level. In order to assess the merits of the candidates, Revenue Canada used Exercise 820, a standardized test developed and owned by the Public Service Commission. The Selection Board found that the respondents were not qualified and they were eliminated from further consideration in the competitions.

[3]    The respondents appealed against the selections for appointment pursuant to section 21 of the Public Service Employment Act and requested access to the materials associated with Exercise 820, including:

a) the background information booklet;

b) the test booklet;

c) the scoring manual;

d) the respondents' written responses to the examination;

e) the written responses of the successful candidates;

f) the scoring sheet or ratings of the respondents' responses; and,

g) the scoring sheet or rating of the successful candidates responses.

[4]                 Revenue Canada and the Public Service Commission agreed to disclose the background information booklet, the test booklet, the respondents' responses and the ratings of the respondents and the successful candidates. However, they refused to disclose the scoring manual and the written responses of the successful candidates.

[5]                 On November 9, 1998, one of the respondents requested an interlocutory ruling from the Appeal Board with respect to the disclosure of materials. A hearing to consider the request took place before the Chairperson on February 16^th and 23^rd and April 12^th, 1999. By decision dated April 26, 1999, the Chairperson ordered Revenue Canada and the Commission to disclose to the respondents all materials requested, including the scoring manual and the responses of the successful candidates, subject to specified conditions.

[6]                 The Attorney General commenced its application for judicial review on May 31, 1999, and by order dated July 9, 1999, this Court ordered a stay of the Chairperson's ruling pending final disposition of this application.

[7]                 After carefully considering the parties written submissions and the oral arguments presented at the hearing of this matter, I am satisfied that the judicial review application should be allowed and the decision of the Chairperson set aside.   

[8]                 The legislative objective of the Public Service Employment Act is to ensure that appointments made within the Public Service are based on selection according to merit. To that end, this Court has consistently recognized the importance of maintaining the confidentiality of standardized tests on the grounds that disclosure of confidential test materials to public servants and others likely to take such tests could place them in a position to acquire information concerning expected responses and to use that information in future competitions or disseminate it to others, either intentionally or unintentionally. If the Commission cannot assure an appeal board that a test has not been compromised by retaining control of that test, it cannot use that test as an assessment tool and must replace it at great cost. Confidentiality of test materials is therefore an important aspect of the merit principle. These principles were stated by Rothstein, J. in Barton and Watkins v. Canada (Attorney General) (1993), 66 F.T.R. 54 at p. 56 as follows:

In the proceedings before me there was no dispute between counsel as to the importance of maintaining confidentiality of the information at issue. There could be serious prejudice to the employer if the information sought was publicly disclosed because of the expense involved in the preparation and use of standardized tests. Indeed, counsel for the applicants stated that it was important to the applicants and to the Public Service Alliance of Canada that public servants be selected on the basis of merit and the efficacy and therefore the confidentiality of such tests is an important aspect of this objective

[9]                   The term "standardized test" is defined in the Commissions's Standards for Selection and Assessment as a systematic procedure for sampling an individual's behaviour in order to evaluate job-related competencies. The development, content, administration, scoring and communication of test results are accomplished in accordance with standard procedures to ensure consistency. Government departments and the Commission may refuse to disclose documents during appeals where disclosure might prejudice the continued use of a standardized test or affect the results of such a test by giving an unfair advantage to any individual.    .

[10]            The relevant legislative provision is section 24 of the Public Service Employment Regulations. It reads as follows:

[11]            In Kaczmar v. Canada (Attorney General) (1999), 172 F.T.R. 197 and Jain et al. v. Canada (Attorney General) (1999), 179 F.T.R. 92, this Court had the opportunity to interpret Regulation 24 and concluded that it required an Appeal Board Chairperson to decide three issues before ordering access to confidential materials associated with a standardized test.

[12]            The first issue concerns the pertinence and relevance of the confidential material to which access is sought. The Chairperson must be satisfied that the material pertains to the appellant or to the successful candidate and is liable, by reason of its relevance, to be disclosed before the Appeal Board. Secondly, the Chairperson must decide whether providing access to the confidential materials might prejudice the continued use of a standardized test or affect the results of a standardized test by giving an unfair advantage to any individual. If this latter question is answered in the affirmative, the third and final issue is whether the prejudice to the future use of the test can be avoided through the imposition of conditions. If the Chairperson is not satisfied that any conditions will prevent that prejudice, he or she is not to order access to the material in question.

[13]            In the present case, it is clear that the confidential test materials at issue pertain to the respondents and to the successful candidates and are relevant to the respondents' appeal. Indeed, the Attorney General has conceded this point. As such they are liable to be disclosed within the meaning of subsection 24(1) of the Public Service Employment Regulations.

[14]            However, it is equally clear to me that having made that determination, the Chairperson then failed to determine whether disclosure of the scoring manuals and test papers of the successful candidates to the respondent might prejudice the continued use of Middle Manager In-Basket Exercise 820 or affect the future results of the test by giving the respondents or others an unfair advantage. In effect, he did not make a finding as to the possibility of prejudice because he did not address the issues raised by section 24 of the Regulations. Instead, he asked himself the wrong question by attempting to balance the issues of cost and confidentiality with the appellants' right to be satisfied that the process was conducted fairly and impartially. He decided that the balance favoured the respondents' grounds for appeal without making the findings of fact required by the Regulations.

[15]            There is little doubt that if the respondent is granted access to the scoring manuals associated with Exercise 820, they will be able to familiarize themselves with the correct responses and thereby improve their performance should they take the test again. In such circumstances, they will have an unfair advantage over other candidates who have not seen the manuals. The continued use of the test therefore, will be prejudiced and the results, when the exercise is administered in the future, will be affected by the possibility of unfair advantage.

[16]            The same consequences will follow if the respondents are permitted to review the test papers of all of the successful candidates. Under the terms of the order made by the Chairperson, the respondents would be able to review each of those test papers for an unlimited period of time. This degree of access will undoubtedly assist the respondents should they take the test again and affect the results. I agree with the applicant that under the circumstances, the test will not afford an accurate measurement of the ability of the respondents to act appropriately in response to new information.

[17]            Furthermore, providing the respondent with access to the scoring manual and the test papers of all successful candidates significantly increases the risk that the information contained therein will be communicated to others, including persons who might take the test again. Revenue Canada and the Commission will lose control of the test materials and will not be able to assure future Appeal Boards that they have not been communicated to others. In the result, it is quite possible that the tests would have to be discarded and replaced at significant costs.

[18]            Accordingly, while there is clearly a right to full disclosure provided for in subsection 24(1) of the Regulations, that right is circumscribed by the confidentiality provisions in the remaining subsections. In order to balance the two of them, it is incumbent upon an appeal board to consider the questions in precisely the way they are set out in Jain.

[19]            I am also persuaded that the Chairperson erred by failing to determine whether disclosure of the confidential test materials to the respondents might prejudice the continued use of Exercise 820 or affect future results by giving an unfair advantage to any individual. The Chairperson instead, determined that the right to full disclosure should prevail over the Commission's interest in protecting future use of the test. The Commission is required to demonstrate that compromise to the test or prejudice of its results is possible if disclosure is made. If the possibility of compromise or prejudice exists, and the appellant cannot show that either can be eliminated, the appeal board should not order access to the materials. The issue which the Chairperson should have addressed is whether, if the respondents were given access to the scoring manuals and test papers, it was certain that such access would not prejudice the continued use of the test or affect future results by giving an unfair advantage.

[20]            Finally, I agree with the applicant that the Appeal Board Chairperson further erred in concluding that the imposition of different levels of disclosure for appellants and their representatives could not be justified under the amended Regulations. The question which has to be asked is whether there is a need for the appellant to actually see the responses or see the assessor manual and thereby derive an advantage or is it sufficient that a representative do that job, compare the answers given by that unsuccessful candidate, look at all the answers given by the successful candidate, look at the assessor manual and do that job on behalf of the individual.

[21]            In order to protect the integrity of standardized tests and to ensure that the merit principle will be respected, an appeal board Chairperson may, in an appropriate case, order that an appellant be given access to only a portion of the materials associated with such a test. In order to provide the appellant with a full and fair opportunity to adduce evidence and to make representations concerning his or her appeal, the Chairperson may at the same time order full disclosure of the test materials to a representative who will not derive a benefit from such access. This differential disclosure is, in my view, justified by the provisions of section 24 of the Public Service Employment Regulations and does not violate the principles of fairness. As stated in Jain, supra, at pp. 97 -98:

The possibility of "differential disclosure", a phrase aptly used by the respondent's counsel, is in my view contemplated by s. 24(6).

The decision of the Court of Appeal in Hasan and Kam, supra paragraph 5, resulted from the statutory interpretation of the Regulations, as they read prior to the 1996 amendments. Under the amended Regulations, the definition of "appellant" includes the appellant's representative. This definition is consistent with the principles in Hasan and Kam. However, in my opinion, this definition must now be read in a manner consistent with: (a) the obligation to disclose information within the scope of s. 24(1); and (b) the purpose contemplated in s. 24(6), which is to provide access to confidential documents and information under conditions which would "make certain" that the use of the standardized tests would not be prejudices. The apparent failure of the Appeal Board Chairperson to canvass the possibility of granting conditional disclosure, prior to concluding that access could not be given, is a reviewable error which warrants this court's intervention.

                                                                           (emphasis added)        

[22]            Accordingly the decisions in Hasan and Kam, which stand for the proposition that both represented and unrepresented appellants are entitled to have access to the same materials as representatives, must be reconsidered in light of the amendments made to the Regulations in 1996. In particular, they must be read in a manner consistent with the purpose contemplated by subsection 24(6), which is to provide access to confidential documents and information under conditions which would make certain that the use of the standardized tests would not be prejudiced.

[23]            I am satisfied that the interests of the respondents can be fully protected by disclosure of all pertinent confidential test materials to a representative who is not employed in the public service. If an appellant is not represented, or is represented by a public servant who may derive an advantage from access to the materials, the appellant must appoint an appropriate representative to examine the materials, formulate allegations and make the necessary arguments on his behalf. This differential disclosure will ensure that the future use of standardized tests, as well as the merit principle itself, will not be compromised. At the same time, it permits the interests of appellants to be fully and fairly addressed.

[24]            As I stated at the outset, the legislative objective of the Public Service Employment Act is to ensure that appointments made within the Public Service are based on selection according to merit. It is imperative that the Regulations be interpreted and applied in a manner which is consistent with that objective. As stated in Driedger on the Construction of Statutes (R. Sullivan, 3^rd ed., Toronto: Butterworths, 1994), at p. 131:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking this into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

[25]            For all of these reasons, the application is allowed. The interlocutory decision of the Chairperson is set aside and the issue of disclosure of the scoring manuals and test papers of the successful candidates is remitted to the Appeal Board for determination in accordance with these reasons.            

     JUDGE

OTTAWA, Ontario

July 23, 2001

             FEDERAL COURT OF CANADA

                    TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO: T-959-99

STYLE OF CAUSE:ATTORNEY GENERAL OF CANADA v. RUFUS O

                                                         ABIDAKUN ET AL

PLACE OF HEARING:                   OTTAWA, ONTARIO

DATE OF HEARING:                    JUNE 12, 2001

REASONS FOR ORDER         THE HONOURABLE MR. JUSTICE ROULEAU

DATED:            JULY 23, 2001

APPEARANCES:

MR. J. S. GRAHAM                       FOR APPLICANT

MR. D. BROWN                         FOR RESPONDENT

SOLICITORS OF RECORD:

MR. MORRIS ROSENBERG                        APPLICANT

ATTORNEY GENERAL OF CANADA

NELLIGAN POWER                        FOR RESPONDENT

OTTAWA, ONTARIO