Date: 19991112
Docket: T-759-96
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
-and-
AUBREY POPE
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
| [1] This is an application for judicial review of the decision of Robert Vaison in his capacity of Appeal Board Chairman, wherein the appeal of Aubrey Pope was upheld against the proposed appointments to the position of Team Coordinator (various positions), PM-04, Revenue Canada Taxation. |
| [2] This application was heard in conjunction with three other applications for judicial review, all arising from the same matter. Mr. Pope who was representing himself, did not attend the hearing. |
FACTS
| [3] Mr. Pope filed an appeal pursuant to section 21 of the Public Service Employment Act (PSEA) against a number of proposed appointments by Revenue Canada Taxation. |
| [4] The candidates were assessed using a variety of selection tools. Knowledge was evaluated via a written exam. Abilities were addressed through the use of the Team Coordinator Simulation (427) test. The personal suitability factor was assessed based on the candidates" responses to several behaviour-based questions. |
| [5] Sixty persons responded to the competition. Eleven (11) were screened out, having been found not to meet the experience factor. Four (4) candidates withdrew. Ten (10) persons failed the knowledge. Twenty three (23) out of the thirty five (35) persons failed the Team Coordinator Simulation (427) test. The remaining twelve (12) candidates all passed this component. The highest ranking nine (9) persons were placed on a list. |
APPEAL BOARD DECISION
| [6] The Appeal Board was unable to conclude that the Team Coordinator Simulation (427) test as administered in this case constituted a basis which it could be confidently held that the candidate has been consistently and reliably assessed under the crucial abilities factors. |
| [7] The Chairperson explained : |
| It is difficult to find that all candidates can be seen as having been fairly and consistently assessed given that there were six (6) different persons, comprising a total of some eight (8) different three-person team carrying out the application of the simulation test under scrutiny. [...] |
| The merit principle requires that candidates aspiring to a position through a competition be comparatively assessed to ensure that they are proposed for appointment in order of merit. |
APPLICANT"S POSITION
| [8] The applicant submits that the Appeal Board failed to apprehend the evidence with respect, first to psychometric testing in its applications and use as a measurement tool in the personnel selection process and second, to the meanings of key concepts of validity and reliability and the scores related thereto in the use and interpretation of test results. |
| [9] The Appeal Board"s conclusion is based on uninformed personal view on matters with respect to which, of its own admission, it does not possess the requisite specialized knowledge. |
| [10] The applicant argues that on the uncontradicted evidence subjected to cross-examination, the fact remains that the Team Coordinator Simulation (427) test has been admitted and shown to be valid and to possess a high degree of reliability. |
RESPONDENT"S POSITION
| [11] Mr. Pope did not attend the hearing and did not submit any written representations on his behalf. |
ANALYSIS
| [12] In Ratelle v. Canada (Public Service Commission, Appeals Branch), [1975] F.C.J. No. 910, the Federal Court of Appeal held : |
| One must remember that there is quite a difference between the role of a Selection Board and that of a board to which an appeal has been made under s. 21. The Selection Board is merely the Public Service Commission's means of fulfilling the task with which it has been entrusted by the legislator. The role of the Selection Board is to decide on the merit of candidates for a given position by using whatever means it deems appropriate, subject to the provisions of the Act and its regulations. The role of the Appeal Board is quite different. Generally speaking, it is not required to replace the Selection Board's appraisal of the candidates with its own. Assessment of the merit of different people is often a matter of opinion and we have no reason to prefer the opinion of the Appeal Board to that of the Selection Board in this matter. The function of the Appeal Board is to hold an inquiry in order to determine whether the Selection Board made its choice in such a way that it was a "selection according to merit". If the Appeal Board concludes that the Selection Board met this requirement, it must dismiss the appeal even if it is of the opinion that, had it been responsible for the task entrusted to the Selection Board, the result might have been different. If a Selection Board has performed its duty in accordance with the Act and regulations and has made an honest effort to choose the most deserving candidate, then an Appeal Board would be exceeding its authority if it allowed the appeal from the decision of the Selection Board on the grounds that the latter had not availed itself of the means considered by the Appeal Board to be most appropriate for the performance of its duty. |
| [13] The Federal Court will intervene if a decision is based on erroneous findings of fact that were made in a perverse or capricious manner or without regard for the material adduced. |
| [14] Did the Appeal Board exceed its jurisdiction? |
| [15] The Appeal Board states that it does not challenge the ranking per se but the overall procedure, yet it concludes that the candidate could not have been fairly and consistently assessed. However there was no evidence tendered to lead to this conclusion. |
| [16] 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 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 assessment to help understand how candidates were assessed. |
| [17] 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. |
| [18] The evidence show that the candidates were assessed in the following manner. The candidates"s 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. |
| [19] In my view, the findings were made in a capricious and perverse manner, without regard to the evidence before the Appeal Board. |
| [20] For these reasons, the application for judicial review is granted. |
Pierre Blais
Judge
OTTAWA, ONTARIO
November 12, 1999
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