Date: 20010209
Docket: T-276-00
Reference: 2001 FCT 41
BETWEEN:
ROBIN EAST
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA,
KIM MIZINSKI and STAN MORIN
Respondents
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of an appeal board (the "Board") appointed pursuant to section 21 of the Public Service Employment Act1 (the "Act") wherein the Board rejected the applicant's appeal against appointments to the position of Trust Exam/Collections/CPP/EI Coverage Officers (PM-02) with Revenue Canada (the "Department") in Saskatoon, Saskatchewan, made following a closed competition in which he was an unsuccessful candidate. The decision under review is dated the 12th of January, 2000.
BACKGROUND
[2] The applicant, who has a visual disability, was at all relevant times employed within the Department. He had been an unsuccessful applicant in an earlier competition in which he sought to upgrade his position within the Department. During the course of preparation for that earlier competition, he had been provided with the services of a "reader" to assist him. He had found that form of accommodation of his disability to be substantially less than satisfactory. In the result, approximately a year before the opening of the competition that is here at issue, he requested from the Department a substantial quantity of documents, converted onto diskettes in Word perfect 5.1, a form that he considered would assist him in preparing for future competitions, whenever they might come along. The requested material, in the requested form, was not provided before the opening of the competition at issue nor was the applicant notified by the Department that his request was unreasonable or that the requested material, in the requested form, could not be provided.
[3] The competition at issue was "posted" in April, 1999. At that time, the applicant renewed his request for the range of material in a form that would be useful to him. He was again offered "reader service". He declined that offer explaining that that form of service "did not work for him". It was only in the last week of October, 1999, long after the competition at issue was completed, that he received, as working documents, some of the documents he had originally requested in the spring of 1998. It was apparently not in dispute before the Board that he had continuously actively followed up on his first request.
[4] In the result, in relation to the competition at issue, the applicant received, in a form useful to him, only such documentation for study purposes as was made available to each of the other candidates who requested study material.
[5] The applicant was unsuccessful in the knowledge portion of the competition. The two successful candidates in the competition are the individual respondents named in this application for judicial review. Neither of the individual respondents filed material or appeared at the hearing of the judicial review.
THE STATUTORY SCHEME
[6] Section 8 of the Act provides that the Public Service Commission (the "Commission") has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament. Section 6 of the Act provides that the Commission may authorize a deputy head to exercise and perform, among other functions of the Commission, the appointment function.
[7] Section 10 of the Act is a cornerstone of the public service employment scheme. It provides for selection according to merit. It is in the following terms:
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.
[8] Section 12 authorizes the Commission to establish standards for selection and assessment as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed and the present and future needs of the Public Service. Subsection 12(3) provides that, in establishing or applying standards, the Commission shall not discriminate against any person by reason of, among other things, disability. That subsection is qualified in respect of standards that constitute bona fide occupational requirements having regard to the nature of the duties of any position.
[9] Sections 15 to 20 outline the appointment process.
[10] Section 21 provides for appeals against appointments by closed competition, as here, or by selection. The decision here under review arises out of such an appeal. The question at issue before the Board was whether or not, with respect to the applicant, the merit principle had been compromised through the failure to provide him, in a timely manner and in a form useful to him given his visual impairment, all of the material that he had requested in order to allow him to prepare himself, not only for the competition at issue, but for other competitions.
[11] In Monique Charest v. Attorney General of Canada et al,2 the Federal Court of Appeal made it clear that the right of appeal under s. 21 of the Act exists to prevent an appointment being made contrary to the merit principle. At page 1221 of his reasons, Mr. Justice Pratte, for the Court, stated the following:
| [...] However, it is important to remember that the purpose of section 21conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle. [emphasis added] |
[12] Thus, it was the duty of the Board to inquire whether the selection of the successful candidates was made contrary to the merit principle, not whether the applicant's rights had been infringed.
THE DECISION UNDER REVIEW
[13] As earlier noted, the Board dismissed the applicant's appeal. It determined that the Department did not have an obligation, at least in relation to the Act and selection according to merit, to convert documents to alternate format so that the applicant could use them to prepare for the competition. I can only assume that the Board, in so concluding, was referring only to documents that were not made available to all other applicants in the relevant competition who requested study documents. The Board wrote:
| The reason for my conclusion about the conversion of documents, is that it is well-established that candidates in a competition under the PSEA [the Act] have no legal right to have the time and opportunity to prepare before they have their qualifications assessed. I know of nothing that gives any candidate a right to the time and opportunity to try to acquire qualifications he does not already have. I know of nothing to suggest that a disabled candidate would have a legal right here than [sic] other candidates do not have, or that such time and opportunity is necessarily part of accommodating such a candidate. It is, of course, true that candidates can be expected to prepare for a competition, and that they usually do have some time after the poster closes, before an exam or interview is scheduled. However as I said, they are not entitled to it. Therefore if Mr. East [the applicant] has a right to conversion of the documents he requested, that right does not derive from PSEA and selection according to merit. |
| Other legislation may give Mr. East or any candidate an absolute right to the documents in the first place, and if so, it may also give him an absolute right to have them converted to alternate format. However that is not within the jurisdiction of an Appeal Board to determine. I would expect that his "parallel recourse process," whatever it may be, probably has the jurisdiction to make such determinations. As I understand it, the Canadian Human Rights Commission has jurisdiction with respect to the Canadian Human Rights Act and the Employment Equity Act, and the Information Commissioner has jurisdiction with respect to the Access to Information Act. |
| I did not find either the Schut Federal Court decision or the subsequent Appeal Board decision helpful in deciding the cast [sic] at hand. The reason is that there [is] an over-riding factual difference between that case and this one: In Schut it was the department that provided all the candidates with the 9 document, 240 page study package that was the entire issue in that case. They apparently did not provide it to Mr. Schut in a suitable alternate format either at the same time, or at some reasonable later time before the exam. By the time of the exam, the department had apparently still provided less than half of it in alternate format to him. (I say "apparently" because there were other issues I do not need to address here.) |
| By contrast with the Schut case, Mr. East did not dispute that the department provided to him in suitable alternate format, the documents they provided to other candidates who requested study materials. Beyond that, all the candidates were on their own. The documents at issue in the case at hand were those Mr. East had asked to be converted for study purposes, and not documents the department had provided to the candidates to use for study purposes. |
| Notwithstanding the foregoing, I also agree with the department that it would have been unreasonable to delay the competition, in this case for many months, solely because Mr. East too had applied on it and the documents he had requested had not been converted. I think that would have been contrary to the general public interest, as opposed to the interests and aspirations of just one candidate. |
THE ISSUES
[14] Counsel on behalf of the applicant identified the following issues:
| (1) the appropriate standard of review; |
| (2) whether the Board erred in concluding that the applicant was not entitled to receive the materials he requested in an alternate format; and |
| (3) whether the Board erred in concluding that the Department had reasonably accommodated the applicant. |
ANALYSIS
[15] With regard to the issue of standard of review, counsel for the applicant referred me to Boucher et al v. Canada (Attorney General)3, where Mr. Justice Strayer 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 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 should have applied is that of correctness. |
[16] Counsel for the respondent urged that the decision here under review, that the requirements of the merit principle were met on the facts that were before the Board, amounted to a finding of fact to which a high degree of deference is appropriate. For this proposition, counsel referred me to Pushpanathan v. Canada (Minister of Citizenship and Immigration)4. Alternatively, counsel urged that the Board, in applying the law to the evidence before it was deciding a narrow question of mixed fact and law for which a similar degree of deference would be appropriate5.
[17] All of the foregoing being said, before me, counsel for the respondent concluded his argument by urging that the decision of the Board that is here under review was "correct". As will be seen later in these reasons, I agree with the final submission of counsel for the respondent. In the result, I need make no determination as between the positions of counsel on the thorny issue of what constitutes a pure question of law and what constitutes a question of mixed law and fact.
[18] As indicated in the passage earlier quoted from the Board's reasons for decision, the decision of this Court in Schut v. Canada (Attorney General)6 was cited before it. It was also cited before me. Mr. Justice Cullen wrote at paragraph 2 of that decision:
| ... The applicant asks that the Court direct the Appeal Board to make a finding that the applicant's employer did not accommodate the applicant's disability. The respondent, however, asks the Court to order the Appeal Board to consider the issue of whether the applicant, as a disabled candidate, has an affirmative duty to play a pro-active role in the accommodation of his disabilities in order to demonstrate his qualifications when participating in competitions. For the reasons which follow, neither of these requests will issue. |
[19] In paragraphs 13 and 14, Mr. Justice Cullen wrote:
| While it is not in dispute that the applicant did not receive the entire material in computer format prior to the examination, the issue to be determined by the Appeal Board is whether the respondent discharged its duty to the applicant, since some of the material which was not converted to diskette format was in the applicant's possession prior to the distribution of the study material. In order to answer this question, evidence needs to be adduced on this point, and if the evidence is conflicting, the Appeal Board needs to assess the credibility of the witnesses. This Court, sitting in review of such decisions, cannot make this determination. Accordingly, the applicant's request is denied. |
| As to the respondent's request, this too, must be denied. The Supreme Court of Canada in a number of cases ... has held that it is the employer, not the employee that is responsible for the accommodation of an employee's disability. The accommodation requires the employer to take reasonable steps, short of undue hardship. In determining the reasonableness of the accommodation, the focus is on the conduct of the employer in the circumstances. Adducing evidence to demonstrate that other methods of accommodating the employee were available aids the employer in demonstrating the reasonableness of those measures. Thus, the Court will not order the Appeal Board to make a determination on this issue, as it incorrectly seeks to examine the conduct of the employee, rather than the reasonableness of the measures undertaken by the employer. [citations omitted] |
[20] While I agree with the conclusion by the Board in the paragraphs from its reasons quoted earlier, that the Schut decision is distinguishable on the facts of this matter, I am satisfied that it is nonetheless instructive.
[21] Here, the Department provided to the applicant in a form requested by him all study or other preparational materials provided to each other applicant in the competition who requested such materials. In so doing, I am satisfied that in relation to the competition at issue, and in particular the "knowledge" component of the competition, the Department fulfilled its duties under the merit principle. The materials earlier requested by the applicant, and not provided in any measure before the close of the competition at issue, were not study or other preparatory materials directly related to the competition at issue. Rather, they were study materials that the applicant had requested in order to better prepare himself for any number of competitions in the future in which he might wish to apply. As such, the failure to provide those materials in advance of the close of the competition in issue simply was not properly before the Board. Its mandate was related to the fulfilment of the merit principle in the competition in issue, not to the failure of the Department to respond to the applicant's broad request in a manner that would have been timely in relation to this competition, and presumably in relation to others. While relief might be available to the applicant with regard to that alleged failure of a timely response, that relief was simply not available before the Board and thus I conclude is not available, on this application for judicial review.
[22] Counsel urged that I address the issue of whether the Board had the jurisdiction, and indeed the obligation, to apply the provisions of the Canadian Human Rights Act7. On the facts of this matter, and given the limited jurisdiction that I have found to be vested in the Board, I decline to address that issue. The issue will have to await a different set of facts on which a judge might be required to address what would appear to be three conflicting views expressed by judges of the Court of Appeal in MacNeill v. Canada (Attorney General)8.
CONCLUSION
[23] While I have some concerns regarding the language and the analysis reflected in the reasons of the Board, I am satisfied that the conclusion that it reached, as reflected in those reasons, was not only reasonably open to it, but was, indeed, correct.
[24] Based upon the foregoing brief analysis, I conclude that this application for judicial review must be dismissed.
COSTS
[25] Both the applicant and the respondent requested costs on this application. Given the result, costs would normally go in favour of the respondent. However, I cannot conclude that the respondent, through Revenue Canada, is in any sense blameless in this matter. I have significant sympathy for the applicant who chose to pursue this application for judicial review in light of what he apparently regarded, perhaps with some justification in relation to his broader request for materials in a form useful to him, as a failure to accommodate his disability in a timely manner. In the result, there will be no order as to costs.
___________________________
J. F.C.C.
Ottawa, Ontario
February 9, 2001
__________________
1 R.S.C. 1985, c. P-33.
2 [1973] F.C. 1217.
3 (2000), 252 N.R. 186 (F.C.A.).
4 [1998] 1 S.C.R. 982 at 1010-1012.
5 See Canada (Attorney General) v. Rogerville (1996), 117 F.T.R. 43 at 47.
6 [1998] F.C.J. No. 806 (Q.L.), (T.D.).
7 R.S.C. 1985, c. H-6.
8 [1994] F.C. 261 (C.A.).
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