Date: 19990630
Docket: T-2401-98
BETWEEN:
HECTOR EWING
Applicant
-and-
ATTORNEY GENERAL OF CANADA (HEALTH CANADA)
and DAVID A. WEHRLE
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
| [1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, of the decision, dated November 25, 1998, by Mr. Yves Nadeau, Chairperson, Public Service Commission, Appeal Board. By that decision, the chairperson dismissed the appeal brought by the applicant pursuant to section 21 of the Public Service Employment Act against the appointment of Mr. David Wehrle to the position of Head, Engineering with Health Canada, following a closed competition. |
FACTS
| [2] The Department of Health held a closed competition to staff the position of Head, Engineering (EN-ENG-04) at the Product Safety Bureau. The applicant and Mr. Wehrle were among eight candidates invited to write a knowledge examination. Mr. Wehrle received a mark of 71.5 percent, the only candidate to achieve a mark better than the passing mark of 70 percent. The applicant received a mark of 66.5 percent. Mr. Wehrle was then interviewed and found qualified for the position, and his name was placed on the eligibility list. |
| [3] The applicant appealed Mr. Wehrle"s appointment, pursuant to section 21 of the Public Service Employment Act. |
| Appeals
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.
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Appels
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.
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DECISION OF THE APPEAL BOARD
| [4] The chairperson of the Appeal Board dismissed the appeal after concluding that the marking of the applicant"s answers to eleven of the twelve questions at issue was not patently unreasonable. He found that the marking of one question was patently unreasonable but dismissed the appeal because it bore no impact on the proposed appointment. |
ISSUES
| [5] The applicant at the hearing raised two issues: |
| (i) did the Appeal Board err in requiring too high an evidentiary onus on the applicant to provide "conclusive evidence" that the marking of his exam was not in accordance with the merit principle? |
| (ii) did the Appeal Board err in applying the wrong standard of review (patently unreasonable) in assessing the decision of the Selection Board? |
APPLICANT"S SUBMISSION
| [6] The applicant submits that the appropriate standard of review to be applied by the Appeal Board upon reviewing the selection process pursuant to section 21 of the Public Service Employment Act is one of "reasonableness" as established and maintained by the jurisprudence since Blagdon1: |
| |
In these circumstances the following comments and findings of the Appeal Board:(...)appear to me to have been warranted on the material before it and to have involved no error of law or injustice to the applicant. |
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What may at first sight seem unjust is that the applicant's record in command positions over a period of six years was considered to be not a good safety record because of these two incidents while that of the successful candidate, whose command experience was only a matter of some four months but included no such incidents, was considered to be a good safety record. That, however, was peculiarly a matter for those charged with the responsibility for evaluating such records and in my opinion it cannot be said that their conclusion was one that could not reasonably be reached by them.
| [7] The applicant further submits that it is clear from the decision of the Appeal Board that it consistently used the term "patently unreasonable" in its findings and that it constitutes an error of law for which the intervention of this Court is warranted. |
| [8] On the issue of the onus of proof applied by the Appeal Board, the applicant submits that the Appeal Board, by requiring "conclusive evidence" clearly exceeded the normal civil standard of proof of "balance of probabilities" and put too high an evidentiary onus on the applicant. |
RESPONDENT"S SUBMISSION
| [9] Counsel representing respondent concedes that the proper standard of review is one of "reasonableness" but he submits that the Court ought to look at what the Appeal Board had done in reality and that by putting words in context, this Court should arrive at the conclusion that the Appeal Board, despite the use of the term "patently unreasonable", applied in fact the standard of "reasonableness". |
| [10] Counsel argued that because of the nature of the function of the Appeal Board which is, as stated in section 21 of the Public Service Employment Act, "to conduct an inquiry" into the assessment process by the Selection Board, it would prevent the Appeal Board from applying the "patently unreasonable" standard because it is not looking for obvious mistakes on the face of the record. |
| [11] Respondent submits that this assumption is consistent with the analysis in the Southam2 case before the Supreme Court of Canada in which it was held that the difference between "unreasonableness" and "patent unreasonableness" lies in the immediacy or obviousness of the defect. Iacobucci J. states at page 777: |
The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable.
| [12] Respondent submits that the fact that the Appeal Board had to conduct an inquiry indicates that it was required to research to some degree and therefore the only standard applied was "reasonableness". |
| [13] On the issue of onus of proof, respondent cited the Leckie3 case of the Federal Court of Appeal in which it was held that: |
In order to succeed under section 21 in establishing that the merit principle had been offended, the applicants had to convince the Appeal Board that the method of selection chosen was "such that there could be some doubt as to its fitness to determine the merit of candidates" i.e. as to the fitness to determine whether "the best persons possible" were found. An appeal board's main duty being to satisfy itself that the best persons possible were appointed, it goes without saying that an appellant, before even embarking on a challenge to the method of selection chosen, should at least allege (and eventually demonstrate) that there was a real possibility of likelihood that the best persons possible were not appointed.
| [14] Respondent submits that the Appeal Board Chairperson was not persuaded, on the basis of the evidence adduced by the applicant, that the marking by the Selection Board was unreasonable. In different words, he was not able to conclude, on the basis of the evidence, that merit had not been respected. It is submitted that the chairperson used the phrase "conclusive evidence" in this sense. |
ANALYSIS
| [15] Regarding the onus of proof put on the applicant by the Appeal Board, I accept the argument made by the respondent in that regard. I do not believe that by using the term "conclusive evidence" that the Appeal Board created a new standard which would be higher than the "balance of probabilities". |
| [16] It is the role of each tribunal to make a decision, one way or the other, based on the conclusive or convincing evidence adduced before it. I do not find that the Appeal Board has departed from the applicable standard of burden of proof. |
| [17] As for the arguments made by the parties on the question of the applicable standard of review, both counsel have defended their position with skills. However, and no matter how detailed and supported the decision of the Appeal Board is, I cannot read beyond the words and make it say something different than what it does. |
| [18] The Chairperson repeatedly and consistently used the term "patently unreasonable" throughout its decision. |
| [19] The Appeal Board found in reviewing the marking of the appellants"s answers that on one occasion it was obviously or patently unreasonable: |
I found that the marking of the appellant"s answer to sub-question 10 (vii) was patently unreasonable. The question was "What do the following acronyms stand for?; in the case of sub-question (vii), the acronym was "ISO". To that question the expected answer was "International Organization for Standardization", while the appellant"s answer was "International Standards Organization". The evidence produced by the appellant lead me to the conclusion that the "ISO" advertise itself as the "International Standards Organization" on the Internet and other official documents. As a result, the "0" result and the non-acceptance of the appellant"s answer were patently unreasonable.
| [20] For this particular finding, the Appeal Board could, on the face of the record come to the conclusion that the Selection Board clearly erred in marking the appellant and that it was patently unreasonable. However, this Court cannot stand behind the conclusion of the Appeal Board when it compares the remaining questions to the one above in its review for errors by the Selection Board. The Appeal Board stated: |
For the remaining questions, I was unable to identify questions and/or marking of answers that were patently unreasonable, thus undermining the selection process that lead to the proposed appointment. (...)
For the other questions, I cannot conclude neither that they are ambiguous, nor that the marking of the answers of the appellant were patently unreasonable. As it is the case with question 4, the appellant proposed his own interpretation for each of these questions and their expected answers.
Unless the appellant can provide conclusive evidence that a question or the marking of an answer was patently unreasonable, as was the case for sub-question 10(vii), it will be held that the question or expected answer are reasonable.
| [21] Even in considering that the argument that the Board used an inappropriate choice of words, has its merit based on the fact that the Board says that it conducted a close scrutiny, the Court is not convinced that the standard applied by the Board was different than what it repeatedly and consistently expressed. |
CONCLUSION
| [22] The decision of the Appeal Board is set aside, and the matter is remitted back to a different Appeal Board Chairperson. |
Pierre Blais
Judge
OTTAWA, ONTARIO
JUNE 30, 1999
__________________
1 Blagdon v. Public Service Commission, [1976] 1 F.C. 615 at 619, 624 (C.A.).
2 Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at 776, 777.
3 Leckie et al. v. The Queen, [1993] 2 F.C. 473 (C.A.).
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