Date: 19990730
Docket: T-1551-98
Ottawa, Ontario, this 30th day of July, 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
MERLIN KACZMAR
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
(Revenue Canada)
Respondent
Dockett: T-1577-98
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MERLIN KACZMAR
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Merlin Kaczmar ("Kaczmar") is an employee of Revenue Canada in Calgary, Alberta. He applied for the position of Team Coordinator, Audit in a closed competition. He was unsuccessful in the competition and, exercising his rights under s. 21 of the Public Service Employment Act R.S.C. 1985 c. P-33 (the "Act") he launched an appeal against the selection for employment made in that competition.
[2] The facts are straightforward. Kaczmar challenges a competition in which one of the selection tools was a standardized test, In-Basket Exercise 820. The result of the competition was that 19 candidates were found qualified for appointment to the position in question, Team Coordinator, Audit. Kaczmar was not among them and exercised his right of appeal under s. 21 of the Act. It appears that Kaczmar did not meet the minimum score for In-Basket Exercise 820 whereas most of the successful candidates had scored 20 or more out of 30. Naturally enough, Kaczmar is curious as to how the In-Basket Exercise is scored, given his anomalous result. His request for disclosure of the test materials was met by a refusal on the part of the Public Service Commission to provide access to the materials or copies of it except upon terms which Kaczmar found unacceptable. The grounds of the Public Service Commission"s refusal was that disclosure would prejudice the continued use of the standardized test. According to the Chairperson"s reasons, the foundation for this claim was the assertion of a common sense proposition that if Kaczmar was given access to materials in which the candidate scored very high, it would be tantamount to giving him an answer sheet and would give him an unfair advantage in any subsequent writing of the test. On that basis, the Chairperson made an order as to disclosure which reads as follows:
| 1. The appellant"s representative, presently Dave Riffel of the Professional Institute of the Public Service, will be given unlimited time to review the test materials. The appellant, Mr. Kaczmar will be restricted to a period of twenty minutes of review for each test paper. Neither Mr. Riffel nor Mr. Kaczmar will be given access to the scoring manual for the IBE 820. Access to the scoring manual and test materials including the papers of Mr. Kaczmar and the successful candidates, will be given to an individual of the appellant"s choosing, who has appropriate qualifications to review and evaluate the test and scoring manual. |
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| 2. Mr. Riffel will be allowed to take unrestricted personal notes and photocopies of the materials presented to him during disclosure. He may retain them in his possession for the purpose of this appeal, subject to his undertaking to maintain confidentiality of those materials, and subject further to paragraph 4 below. |
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| 3. The appellant will be subject to a waiting period of 180 days before being permitted to write the IBE 820. This period will run from the last occasion on which he sees the test materials, whether at disclosure or at the hearing of his appeal. |
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| 4. At the conclusion of the hearing into the merits of this appeal, all materials relevant to the IBE 820 in the possession of the appellant, his representative, and any other person to whom they may have been disclosed pursuant to paragraph 1, will be placed in a sealed envelope, to be retained on the Public Service Commission Appeal Board file. This will include their personal notes. |
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| 5. In the event of an application for judicial review, the materials will be returned to the appellant"s representative, on request. In the event that the period for judicial review expires without further application, the test materials will be returned to the Personnel Psychology Centre of the Public Service Commission, on request. The personal notes will be destroyed. |
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[3] In addition the Chairperson excluded from the materials to be disclosed the test materials of a number of candidates who had been appointed to positions as a result of an earlier closed competition or had declined appointment. It was her position that in the result, none of these individuals could be appointed to the position which was the subject of the competition and accordingly, they could not be considered to be a successful candidate.
[4] The Attorney General of Canada seeks judicial review of that part of the order allowing Kaczmar"s representative to take notes and photocopies of the test material. Kaczmar brings his own application for judicial review of the decision to withhold production of the scoring manual to his representative and well as from the withholding of the test results of individuals who have since accepted other positions. Both applications will be dealt with in these reasons.
[5] This dispute arises in the context of certain provisions under the Act and Regulations promulgated pursuant to the 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.
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.
21(1.1) Idem
(1.1) Where a person is appointed or about to be appointed under this Act and the selection of the person for appointment was made from within the Public Service by a process of personnel selection, other than a competition, any person who, at the time of the selection, meets the criteria established pursuant to subsection 13(1) for the process 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(1.1) Idem
(1.1) Dans le cas d'une nomination, effective ou imminente, consécutive à une sélection interne effectuée autrement que par concours, toute personne qui satisfait aux critères fixés en vertu du paragraphe 13(1) 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.
21(2) Duty of Commission when notified of decision
(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,
21(2) Mesures
(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) if the appointment has been made, confirm or revoke the appointment; or
a) si la nomination a eu lieu, la confirmer ou la révoquer;
(b) if the appointment has not been made, make or not make the appointment.
b) si la nomination n'a pas eu lieu
21(2.1) Appointment to other position
(2.1) Where the appointment of a person is revoked pursuant to subsection (2), the Commission may appoint that person to a position within the Public Service that in the opinion of the Commission is commensurate with the qualifications of that person.
21(2.1) Nomination à un autre poste
(2.1) En cas de révocation de la nomination, la Commission peut nommer la personne visée à un poste qu'elle juge en rapport avec ses qualifications.
21(3) Other measures
(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.
21(3) Autres mesures
(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.
21(4) Appeal
21(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.
21(4) Appel
(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.
21(5) Exception
(5) Section 10 and the rights of appeal provided by this section do not apply to appointments made under subsection 29(1.1) or (3), 30(1) or (2) or 39(3) of this Act or subsection 11(2.01) of the Financial Administration Act or any regulations made under paragraph 35(2)(a) of this Act.
| R.S., 1985, c. P-33, s. 21; 1992, c. 54, s. 16; 1996, c. 18, s. 15. |
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21(5) Exception
(5) L"article 10 et le droit d"appel prévu au présent article ne s"appliquent pas dans le cas où la nomination est faite en vertu des paragraphe 29(1.1) ou (3), 30(1) ou (2) ou 39(3) ou des règlements d"application de l"alinéa 35(2)a ), ou en vertu du paragraph 11(2.01) de la Loi sur la gestion des finances publiques.
| S.R., 1985, c. P-33, s.21; 1992, c. |
| 54, s. 26; 1996, c. 18, s. 15. |
[6] These statutory provisions are supplemented by Regulations made pursuant to the Act, the Public Service Employment Regulations 1993, (the "Regulations"), S.O.R./93-286 as amended by S.O.R./96-482 Règlement sur l"emploi dans la fonction publique D.O.R.S./93-286 amendé par D.O.R.S./96-242 These provide as follows:
24. (1) An appellant shall be provided access, on request, to any information, or document that contains information, that pertains to the appellant or to the successful candidate and that is liable to be disclosed before the appeal board.
24. (1) L'appelant a accès, sur demande, à toute information ou tout document qui contient des renseignements concernant lui-même ou le candidat reçu et qui est susceptible d'être communiqué au comité d'appel.
(2) The deputy head concerned shall provide, on request, to the appellant a copy of any document referred to in subsection (1).
(2) L'administrateur général en cause fournit, sur demande, à l'appelant une copie de tout document visé au paragraphe (1).
(3) Despite subsections (1) and (2), the deputy head concerned may refuse to allow access to information or a document, or to provide a copy of any document, if the disclosure might
(3) Malgré les paragraphes (1) et (2), l'administrateur général en cause peut refuser de donner accès à de l'information ou à des documents ou de fournir copie de documents si leur divulgation risquerait :
| (a) threaten national security or any person's safety; |
| a) soit de menacer la sécurité nationale ou la sécurité d'une personne; |
| (b) prejudice the continued use of a standardized test owned by the department or commercially available; or |
| b) soit de nuire à l'utilisation continue d'un test standardisé qui appartient au ministère ou qui est offert sur le marché; |
(c) affect the results of such a standardized test by giving an unfair advantage to any individual.
| c) soit de fausser les résultats d'un tel test standardisé en conférant un avantage indu à une personne. |
(4) Despite subsections (1) and (2), the Commission or the Commission's representative may refuse to allow access to any information or document, or to provide a copy of any document, if its disclosure might
(4) Malgré les paragraphes (1) et (2), la Commission ou son représentant peut refuser de donner accès à de l'information ou à des documents ou de fournir copie de documents si leur divulgation risquerait :
| (a) prejudice the continued use of a standardized test owned by the Commission or commercially available; or |
| a) soit de nuire à l'utilisation continue d'un test standardisé qui appartient à la Commission ou qui est offert sur le marché; |
| (b) affect the results of such a standardized test by giving an unfair advantage to any individual. |
| b) soit de fausser les résultats d'un tel test standardisé en conférant un avantage indu à une personne. |
(5) Where the deputy head concerned or the Commission or its representative refuses to allow access to any information or document under subsection (3) or (4), the appellant may request that the appeal board order that access.
(5) Lorsque l'administrateur général en cause ou la Commission ou son représentant refuse de donner accès à de l'information ou à des documents en vertu des paragraphes (3) ou (4), l'appelant peut demander que le comité d'appel ordonne d'accorder cet accès.
(6) Where the appeal board orders access to any information or document under subsection (5), that access is subject, before and during the hearing, to any conditions that the appeal board deems necessary in order to make certain that
(6) Lorsque le comité d'appel ordonne d'accorder l'accès à de l'information ou à des documents en vertu du paragraphe (5), cet accès est assujetti, avant et pendant l'audition, aux conditions que le comité d'appel estime nécessaires pour empêcher que :
| (a) national security or any person's safety will not be threatened; |
| a) la sécurité nationale ou la sécurité d'une personne ne soit menacée; |
| (b) the continued use of a standardized test referred to in subsection (3) or (4) will not be compromised; or |
| b) l'utilisation continue d'un test standardisé visé aux paragraphes (3) ou (4) ne soit compromise; |
| (c) the results of such a standardized test will not be prejudiced by giving an unfair advantage to any individual. |
| c) les résultats d'un tel test standardisé ne soient faussés en conférant un avantage indu à une personne |
(7) Any information or document obtained under this section shall be used only for purposes of the appeal.
(7) Toute information ou tout document obtenu en vertu du présent article ne peut être utilisé qu'aux fins de l'appel.
(8) For the purposes of this section, "standardized test" has the same meaning as in the standards for selection and assessment prescribed by the Commission under section 12 of the Act. SOR/96-482, art. 4;
SOR/97-142, art. 8.
(8) Pour l'application du présent article, "_test standardisé_" s'entend au sens des normes de sélection et d'évaluation fixées par la Commission en vertu de l'article 12 de la Loi. DORS/96-482, art. 4; DORS/97-142, art. 8.
[7] Dealing with Kaczmar"s application first, he objects to the denial of access to the scoring manual and the exclusion of names from the list of candidates whose test materials will be disclosed.
[8] Kaczmar specifically renounces any claim to personal access to the scoring manual but argues that the disclosure ordered by the Chairperson is inadequate.
[9] Counsel for Kaczmar points out that the psychologist is not the one who will have to cross-examine witnesses with respect to the test and its application. The order made by the Chairperson amounts to providing Mr. Kaczmar with an independent assessment of the test, but limits his ability to make use of that information in the adversarial forum where his rights will be determined. One is reminded of Rothstein J."s (as he then was) comments in Barton and Watkins v. Canada (Attorney General) (1993), 66 F.T.R. 54 at p. 57.
| [14] The adversarial nature of the proceedings in this case have been described in Wiebe v. Public Service Commission (Appeal Board) (Can.), [1992] 2 F.C. 592; 141 N.R. 387 (C.A.), wherein Hugessen, J.A., stated at page 595 (F.C.): |
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| "Proceedings under s. 21, though styled an "inquiry", are very much adversasrial in nature, with the applicant and the employer each being on opposite sides of the question and each generally being represented by persons experienced in this specialized type of dispute. The situation was aptly described by Cattanach, J., in the Trial Division [Millward v. Public Service Commission, [1974] 2 F.C. 530, at p. 539] as follows: |
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| "While there is not a lis inter parties [sic ] in the true sense of that term, there is, nevertheless, a contest between two parties. The deputy head is before the board to justify that the selection of the successful candidate was on the basis of the merit system and the unsuccessful candidate is present to establish that this was not the case. Such situation has been described and established by authority as a quasi-lis between quasi-parties." |
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| In such adversarial proceedings, parties are entitled to be represented. Such representation must be effective, in the sense that counsel or representative must have an opportunity of knowing what evidence will be given by the witnesses that he or she will call. He or she must have the opportunity of reviewing the evidence of the expert witness, of organizing the evidence, of ensuring that the evidence is coherent, of emphasizing its best features and of preparing the witness for cross-examination. These are the normal functions of counsel. Without access to all relevant information and in particular, the confidential information upon which the expert evidence would be based and upon which the witness could be cross-examined, counsel or a representative cannot properly perform the task of persuading the court or tribunal as to the merits of the client"s case. |
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| [15] In this case, the Appeal Board, in its decision, ignored this role of counsel or representative by limiting disclosure only to a person who could give evidence before the tribunal. In making such a ruling, the Appeal Board erred by denying the applicants the right to have their representative, who was in charge of managing and conducting their case, know the same information that would be known be known by his potential witness. While the Appeal Board"s concern with confidentiality was appropriate, it was an error for the Appeal Board to limit disclosure in the manner it did. |
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[10] On the basis of this reasoning, the scoring manual ought to be disclosed to Kazmar"s representative. The difficulty from Kaczmar"s point of view is the decision of Richard J. (as he then was) in Hasan v. Canada (Attorney General) (1996), 111 F.T.R. 214 in which the learned judge held that a scoring manual did not contain "information that pertains to the appellant or to the successful candidate..."and therefore was not subject to disclosure. The basis of the decision was that the manual did not contain information specific to a candidate. This ruling was made in the course of a case where the primary issue was whether the Appeal Board could distinguish, for purposes of disclosure, between the appellant and his/her representative. Richard J. concluded that there was no basis for such a distinction so that if the scoring manual was subject to disclosure, it would have to be given to the appellant himself. This does not change the nature of the manual, but it does change the consequences of disclosure. I believe that the result in Hasan was dictated by the circumstances of the case.
[11] Hasan was considered by McGillis J. in Murphy v Canada (Attorney General), [1998] F.C.J. No. 1843. The learned judge undertook a long and detailed examination of the disclosure provisions in the Regulations made pursuant to the Act as they existed from time to time and concluded that the scoring manual likely was subject to disclosure if, on the facts, it was relevant to the matter in dispute:
| 30. Counsel for the respondent submitted, among other things, that the scoring manual was not subject to disclosure under the terms of subsection 24(1) of the amended Regulations on the basis of the jurisprudence decided in the context of the previous Regulations. I cannot accept that argument. In my opinion, the amended legislative scheme was designed in order to balance the competing interests of the appellant in receiving full disclosure and of the government in protecting the confidentiality and integrity of the standardized tests. In order to achieve the appropriate balance, the amended Regulations provide for full disclosure to an appellant, recognizing that circumstances nevertheless may exist in which disclosure should be refused or granted subject to conditions in order to protect the confidentiality and integrity of the standardized test. Indeed, the amendments clearly contemplate that documents or information pertaining to a standardized test will be subject to disclosure; otherwise, there would be no necessity for the provisions granting discretionary powers to the deputy head, Commission and appeal board in relation to standardized tests. The scoring manual is one of the documents directly related to the administration and use of the standardized test and, as such, may be information or a document "... that pertains to the appellant or to the successful candidate and that is liable to be disclosed before the appeal board", within the meaning of subsection 24(1). The question of whether a scoring manual ought to be disclosed to an appellant under subsection 24(1) depends on its relevance in the context of the facts of the case. However, even if the scoring manual is subject to disclosure on the facts of a particular case, the deputy head or the Commission and the appeal board may exercise their various discretionary powers under the amended Regulations. |
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[12] In her reasons, McGillis J. notes that the practice of the Public Service Commission, prior to Hasan, was to disclose the scoring manual as a matter of course, subject to conditions designed to protect the continuing utility of the test. That history puts the question of disclosure of the scoring manual into perspective.
[13] In my view, there is no reason that the scoring manual cannot be a document subject to disclosure pursuant to s. 24(1) of the Regulations. The test is whether the document contains information which pertains to the appellant and the successful candidate and, whether it is "liable to be disclosed before the appeal board". Without recourse to the scoring manual, Kaczmar and his representatives would have access to certain test papers which have been scored but would not be able to assess the consistency of scoring. Presumably the disclosure to a psychologist is intended to allay their fears on that issue. However, this is an adversarial process and Kaczmar"s task is persuade the Appeal Board. Having his fears allayed does not assist in that process. The scoring manual contains information which pertains to the applicant and to the successful candidate, in that recourse to the scoring handbook is necessary to make sense of the candidates" test results. It therefore meets the first leg of the test in s. 24(1).
[14] The expression "liable to be disclosed before the appeal board" is a curious turn of phrase. One does not ordinarily speak of documents being disclosed before a tribunal. Disclosure is a practice which occurs at the pre-hearing stage when the parties exchange relevant documents for the purpose of narrowing the issues in the litigation. In my view, the expression must be read in the context of a provision which is attempting to define which documents are to be made available to an appellant. The first requirement is that the documents must contain information which pertains to the candidates. This does not necessarily mean relevant information since the information must simply "pertain" to the appellant or to the successful candidate. The second requirement, that the document is liable to be disclosed before the appeal board, should therefore be read so as to import the requirement of relevance, since it is relevance which determines whether a document will be accepted as evidence before a tribunal. In my view, the phrase "liable to be disclosed before the appeal board" should be read as meaning "by reason of its relevance, capable of being introduced as evidence before the appeal board."
[15] The task of the Appeal Board when faced with a request for access to the scoring manual subject to an objection pursuant to s. 24(3) or (4) is to ask:
| 1) does the manual contain information which pertains to the appellant or the successful candidate? While it will do so in most cases, each case must be examined on its own facts. |
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| 2) if it does, is it relevant to the issues to be determined by the Appeal Board? |
| 3) if the answer to both questions is yes, the Appeal Board may order access upon conditions which satisfy the requirements of s. 24(6). If for whatever reason, they |
| cannot be satisfied, then access could be refused. |
[16] The second issue is whether Kaczmar or his representative is entitled to make notes amounting to a transcription or to take copies of the scoring manual and other test materials or is he limited to access to the material?
[17] The Attorney General"s claim is that the Appeal Board did not have jurisdiction to authorize the making of notes amounting to a transcription or the taking of copies of the material to which an objection to production had been made under s. 24(3) of the Regulations. He points to the very specific wording of the Regulations which governs disclosure:
| 1- Ss. 24 (1) provides that an appellant shall have access to any document that pertains to the successful candidate or to the appellant. |
| 2- Ss. 24(2) provides that the deputy head may provide a copy of any document referred to in Ss. (1) |
| 3- Ss. 24(3) provides that the deputy head may refuse to allow access or to provide a copy of a document for specified reasons |
| 4- Ss. 24(4) provides that the Public Service Commission may refuse to allow access or to provide a copy of a document for specified reasons. |
| 5- Ss. 24(5) provides that where the deputy head or the Commission refuse access, the Appellant may request that the Appeal Board order access. |
| 6- Ss. 24(6) provides that where the Appeal Board orders access, that access may be subject to certain conditions. |
[18] The parallel provisions in ss. 24(3) and (4) are necessary because in some instances the employing authority is a government department whereas in other cases, it is the Public Service Commission. In this case, ss. 24(3) is applicable.
[19] The Attorney General argues that since ss. 24(5) only authorizes an application for access and ss. 24(6) only speaks of an order granting access, there is no jurisdiction for the Chairperson to order that copies be provided where the deputy head or the Commission invoke ss. 24(3) or (4) as the case may be. Kaczmar takes the position that as a matter of common sense, counsel cannot prepare adequately for examination and cross examination of complex documents without having copies of those documents to work with. While not disputing the specific provisions relied upon by the Attorney General, Kaczmar points to the definition of full disclosure found in s. 2 of the Regulations:
"full disclosure" means access by the appellant to documents or information referred to in subsection 24(1), the obtaining by the appellant of a copy of any document referred to in subsection 24(2) and the submission of the allegations referred to in subsection 25(1) by the appellant to the deputy head concerned
< < divulgation complète > > S'entend de l'accès par l'appelant à l'information ou aux documents visés au paragraphe 24(1), de l'obtention d'une copie de tout document visé au paragraphe 24(2) et de la remise, par l'appelant à l'administrateur général en cause, des allégations visées au paragraphe 25(1)
[20] Kaczmar takes the position that since the Appeal Board has the authority pursuant to ss. 25(6) to make an order imposing any measure it deems necessary to ensure full disclosure, and since the definition of full disclosure by implication refers to all relevant documents, the Appeal Board had jurisdiction to order copies of the testing materials. The implied reference to all relevant materials arises from the reference to ss. 24(1) which uses the words " document that contains information ... that is liable to be disclosed before the appeal board."
[21] In the absence of authority compelling me to do so, there is no obvious reason to depart from the plain meaning of the words used in the Regulations. This requires me to respect the distinction drawn between providing access to the documents and providing copies of the documents. If objection to disclosure is taken pursuant to s. 24(3) or (4) of the Regulations, the Appeal Board"s authority under the Regulations is limited to ordering access to those documents. The Appeal Board does not have authority to order that copies be provided. To that extent the Appeal Board erred in allowing unrestricted personal notes and photocopies to be taken of the documents to which access was granted.
[22] The last issue to be dealt with is the question of the exclusion of certain names from the list of persons whose test materials will be disclosed to Kaczmar. Section 24(1) of the Regulations defines the subject of disclosure by reference to information which pertains "to the appellant or to the successful candidate". Kazmar"s request amounts to a request for disclosure of material which pertains to all persons whose names were placed on the eligibility list from which appointments were to be made. Is each of those persons the successful candidate? Once they come off the eligibility list, because of appointment in another competition or for any other reason, do they cease to be a successful candidate. Or, put another way, at what point in time is the determination of the identity of the successful candidate to be made?
[23] The Act contemplates that eligibility lists will be prepared from which appointments will be made to positions1. The fact of being placed on the eligibility list does not mean one will be appointed but one cannot be appointed if one"s name does not appear on the list. In that context, at what point does a person whose name appears on the eligibility list become a successful candidate? Successful candidate is defined in s.20 of the Regulations as a person whose name appears on the eligibility list and "who has been or is about to be appointed." But as this matter demonstrates, who is about to be appointed is a function of when the question is asked. Should this be left to the vagaries of who is still eligible for appointment at the time an appeal is launched? Is some other rationale more persuasive?
[24] I begin from the proposition that the purpose of the disclosure provision is to enable an unsuccessful candidate to test whether the appointment was made according to merit. Because the legislation contemplates that names on the eligibility list will be ranked by order of merit, there is an issue as to merit between the appellant and each person whose name which appears above his or hers. The order of placement of the name on the list reflects a determination of relative merit as between the appellant and each of those candidates. Since each person whose name appears on the list above that of the appellant should be appointed prior to the appellant, each of those persons represents a successful candidate from the point of view of the appellant. That is certainly so at the time the list is created. Is there a rationale for dealing with the list at some date other than the date of its creation? The successful candidate is defined by reference to being placed on the list ahead of the appellant, a state of affairs which came into being at the time the list was created. Subsequent events do not alter the relative ranking. More importantly, subsequent events do not alter the fairness and consistency of the ranking. If disclosure is intended to allow a candidate to confirm that the merit principle has been applied, the material time for disclosure ought to be the time when the merit principle was to be applied which is the time of creation of the list. In the end result, the applicant is entitled to access to the test results of all those candidates who were placed on the eligibility list.
O R D E R
| For the reasons set out above, it is hereby ordered that: |
| 1- the matter of access to the scoring manual is remitted to the Chairperson to be dealt with in accordance with these reasons. |
| 2- no copies or notes amounting to a transcription are to be allowed with respect to those matters in respect of which objection has been taken pursuant to s. 24(3) of the Public Service Employment Regulations 1978. |
| 3- the applicant is entitled to access to the test papers of all candidates whose names appeared on the eligibility list at the date of its creation, notwithstanding the fact that as of the date of the hearing some may no longer be eligible for appointment. |
Judge
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1 18. (1) An appointment under this Act made to a position by competition shall be made from an eligibility list in accordance with the Regulations of the Commission.
(2) A candidate on an eligibility list who ranks lower on the list than a candidate placed on the list pursuant to subsection 17(1.1) may be appointed before the higher-ranking candidate, if a position is left vacant for the appointment of the higher-ranking candidate until it is determined if the higher-ranking candidate meets the conditions of employment referred to in that subsection.
18. (1) Les nominations à des postes pourvus par voie de concours sont effectuées d'après la liste d'admissibilité conformément aux règlements de la Commission.
(2) Un candidat venant après, sur une liste d'admissibilité, celui visé au paragraphe 17(1.1) peut être nommé avant ce dernier si un poste destiné à celui-ci est laissé vacant jusqu'à ce qu'il soit décidé s'il remplit les conditions d'emploi établies à ce paragraphe.
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