Jain v. Canada (Attorney General), docket T-1588-98

Date: 19990730

Docket: T-1588-98

BETWEEN:

          RAMISH JAIN, RAFIO ROKERYA, BIK DEWAN, RAM MADHAVEN,

       SIU LAI, MAHENDI LADHANI, MANSUR AMEEN, TONY AU, ANNA YU,

                                     PETER SROBAR, TONY MARCOGLIESE,

GEORGE ENNS, LALIT LAKHANI, MUNAWAR MERCHANT, STAN ANGLIN,

        RESTY DEL ROSARIO, JOE TUCCI, STEVE LORIA, SANDEEP CHABA,

                   NARINE HARRYPERSAD, LUCY CERSON, ANTONY KERR

                                                          andANDY MAYHEW

                                                                                                                                         Applicants

                                                                        - and -

                    ATTORNEY GENERAL OF CANADA (REVENUE CANADA)

                                                                                                                                      Respondent

                                                    REASONS FOR ORDER

LUTFY J.:

[1]         The applicants, unsuccessful candidates in a Revenue Canada closed job competition, contested the appointment of the selected persons in an appeal before the Public Service Appeal Board.^[1] During the appeal, the applicants requested access to the assessor's manual used in the Public Service Commission Examination 427, Team Coordinator Simulation Exercise. The applicants now seek judicial review of the interlocutory decision of the Appeal Board Chairperson, denying the applicants access to the assessor's manual, pursuant to her interpretation of section 24 of the Public Service Employment Regulations, 1993.^[2]

[2]         The issue of access to the assessor's manual, or other similar correction keys or marking guides used in job competitions in the public service, has been considered in previous decisions of this Court.

[3]         In Barton and Watkins v. Canada (Attorney General),^[3] the Appeal Board limited the disclosure of documents concerning the Supervisory In-Basket Exercise, including the correction grid or key employed in determining the results, to the appellants' expert psychologist. In the view of Justice Rothstein, this disclosure had to extend to the appellants' representative. In remitting the matter for reconsideration by the Appeal Board, Justice Rothstein ordered that the issue of confidential information be dealt with in the following manner:

3. If the Appeal Board concludes with reasons, that disclosure may not be made to the representative, based upon a reasonable and proper exercise of its discretion, to offer the applicants the opportunity of retaining a different representative who would be entitled to disclosure of the confidential information, subject to the same conditions ...^[4] [Emphasis added.]

The decision of the Appeal Board, which was under judicial review in Barton and Watkins preceded the enactment of the Public Service Employment Regulations, 1993.

[4]         In Hasan v. Canada (Attorney General),^[5] a self-represented appellant, who might undergo a similar test in a future competition, was denied access to certain confidential documents. The Appeal Board indicated, however, that access would be provided to the appellant's representative, if he appointed one who was acceptable to the government institution. In disposing of the application for judicial review, Justice Richard, as he then was, concluded that the regulatory scheme did not permit the Appeal Board to distinguish between disclosure to be made to the appellant and disclosure to be made to the appellant's representative. As a result, the appellant was entitled to access to all documents liable to be disclosed to a representative.

[5]                      The Court of Appeal confirmed Justice Richard's interpretation of the disclosure requirements under the 1993 Regulations in Hasan. A second decision of the Court of Appeal, issued by the same panel on the same day, found that the principle in Hasan was also applicable where the appellant had appointed a representative. In Canada (Attorney General) v. Kam,^[6] Justice Pratte concluded: "... the conjunction ‘or' in subsection 24(1) shall be construed to mean ‘and' so as to create a multiple rather than an alternative obligation." Subsection 24(1) of the 1993 Regulations, prior to the 1996 amendments, provided:

An appellant or the appellant's representative shall be provided access, on request, to any document that contains information that pertains to the appellant or to the successful candidate and that may be disclosed before the appeal board.

L'appelant ou son représentant a accès, sur demande, à tout document qui contient des renseignements concernant l'appelant ou le candidat reçu qui sont susceptibles d'être communiqués au comité d'appel.

The Court of Appeal did not deal with disclosure of the assessor's manual in either Hasan or Kam.

[6]         In Hasan, the government institution described the prevailing disclosure practice under the 1993 Regulations. In doing so, it acknowledged that "[t]he applicant's representative is given full access to ... the Simulation's Handbook for Assessors; ...".^[7] Nonetheless, Justice Richard determined that the assessor's manual was not to be included in the documents to be disclosed. His reasons for this determination were stated in these terms:

... on a careful reading of the regulation, disclosure need be made only of documents that pertain to the appellant or to the successful candidate. The manual for assessors, which is the Simulation's answer key, does not pertain to either of these persons. It is an internal document which is intended solely for the assistance of the selection board to preserve some consistency in evaluating candidates. Thus, I find that the manual for assessors is not within the class of documents for which disclosure rights are provided by s. 24(1).^[8]

Justice Richard's decision preceded the 1996 amendments to the Public Service Employment Regulations, 1993. Under subsection 24(6) of the amended Regulations, the Appeal Board can allow controlled access to relevant information. This flexibility did not exist in the 1993 version.

[7]                      In Murphy v. Canada (Attorney General),^[9] Justice McGillis considered the disclosure of the in-basket exercise scoring manual in the context of the Public Service Employment Regulations, 1993 as amended in 1996. After describing the 1996 amendments as designed to balance the competing interests between full disclosure and the maintenance of the integrity of the standardized tests, Justice McGillis concluded:

... 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 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.^[10] [Emphasis added.]

I respectfully agree with this analysis.

[8]              The amended Regulations, as interpreted in Murphy, require an Appeal Board to consider three questions in applying section 24:

   (a)     is the assessor's manual a document or information which "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)?

   (b)     in the affirmative, might the applicants' access to the assessor's manual "prejudice the continued use of a standardized test" or "affect the results of such a standardized test by giving an unfair advantage to any individual", within the meaning of subsections 24(3) and (4)?

   (c)     in the further affirmative, could access be provided subject to conditions which would "make certain", within the meaning of subsection 24(6), that the continued use of the standardized test will not be compromised and that the proposed disclosure will not give an unfair advantage to any individual?

In my view, the Appeal Board should adopt a purposeful approach in assessing these questions in order to "limit the grounds on which a deputy head can refuse to release a document", as suggested in the Regulatory Impact Analysis Statement which accompanied the enactment of the 1996 regulations.^[11]

[9]         It is against this background that I turn to the consideration of the decision now under judicial review.

[10]       In their written submissions to the Appeal Board, the applicants' representatives, Siu Lai and Luigi Tucci, explained the basis of their request for the assessor's manual:

We have carefully examined two of the appellants' written responses and compared them to the written responses of several of the successful candidates. We were unable to determine, among other things, the following:

·      basis for awarding the marks to the appellants and the successful candidates;

·      whether the appellants' written responses cover the important areas expected in the marking guide and were awarded marks improperly;

·      whether the successful candidates' responses cover the important areas expected in the marking guide and were awarded marks properly;

·      whether Selection Board followed the marking guide in awarding marks to the appellants and the successful candidates.

In absence of the above information, the appellants will not be able to determine whether the selection process has been made in accordance with the merit principle.^[12]

[11]       In his reply submissions, the departmental representative explained the refusal to provide access to the assessor's manual in these terms:

... I would also like to refer you to the Hasan v. Attorney General of Canada and the Federal Court Decision (Gregory Thompson) rendered by J. Wetston [sic] dated October 9th, 1996. These decisions raised a number of salient points regarding the disclosure of confidential materials. The Department feels these decisions justify our imposition of certain restrictions on access, particularly with one of the Representatives, Mr. Lai, also being an Appellant and a potential applicant on future processes.

The Department has attempted to find a balance between the rights of the Appellants and the obligations of the Department to maintain the confidentiality of a standardized test. We are particularly concerned that access to all materials would compromise the continued use of the test and provide an unfair advantage to the Appellants.

It is the Department's position that natural justice is being adhered to by allowing the appellants and their representatives to view all the candidate papers they wish to see, the general notes that were taken and the Selection Board Member's presentation notes. Requests for access to or specific references to the Assessor's manual would, in our opinion, irreparably compromise the future use of the test.^[13] [Emphasis added.]

[12]       In denying the applicants' access to the assessor's manual, the Appeal Board Chairperson referred to the reasons of Justice Richard in Hasan, supra paragraph 4, and continued:

Although the Hasan judgment was issued prior to the revision of the Regulations, subsection 24(1) clearly limits disclosure to information or documents which pertain to the appellant or to the successful candidate. Further, subsection 24(6), in my view, provides the Appeal Board with the authority to deny access to information or documentation which "might" prejudice the continued use of the text or "might" refer an unfair advantage to any individual. In the instant case, I am satisfied that the appellants and their representatives have been provided with access to the relevant documents and information as specified in the Regulations. Further, I am of the view that further disclosure to the appellants or their representatives of the Assessor's Manual would compromise the integrity and, therefore, the future use of PSC examination 427.^[14]

[13]       As I noted earlier, the first step in the Appeal Board's analysis is to determine whether the information or document sought is covered by subsection 24(1).

[14]       Access to documents similar to the assessor's manual has been provided in other circumstances. In Barton and Watkins, supra paragraph 3, the Appeal Board provided access to the correction grid to the appellants' expert psychologist. Upon judicial review, this access was extended to the appellants' representative. In Hasan, supra paragraph 6, under the original version of the Public Service Employment Regulations, 1993, the government institution acknowledged that the simulation's handbook for assessors was provided to representatives. Similarly, in Canada (Attorney General) v. Thompson,^[15] another case under the original Regulations, the appellants' representatives appear to have been provided access to the scoring manual according to restricted procedures established by the Appeal Board. In Murphy, McGillis J. noted that: "Prior to the proclamation of the amended Regulations, Revenue Canada routinely disclosed to appellants' representatives, on a confidential basis, documents or information pertaining to the standardized in-basket exercise test, including the scoring manual. ... No evidence was adduced ... to establish that any harm was caused ..." by this disclosure.^[16] Finally, in the present case, the departmental representative does not appear to have claimed, at least not explicitly in his written and oral submissions before the Appeal Board, that the assessor's manual was outside the scope of subsection 24(1). His reference to the balancing test between disclosure and the maintenance of the confidentiality of standardized tests seems to acknowledge that the assessor's manual was a relevant document.

[15]       While the Appeal Board Chairperson briefly referred to the decision in Hasan, her reasons do not explicitly state whether or not, in her view, the assessor's manual is a document contemplated by subsection 24(1). However, her reasons do consider whether disclosure of the assessor's manual would compromise the future use of the standardized test. In the absence any explicit statement to the contrary, I infer that the Appeal Board Chairperson concluded that, in the context of this case, the assessor's manual met the twofold test in subsection 24(1).^[17]

[16]       The decision of the Appeal Board Chairperson, concerning the second question she was to consider, is clear. She concluded that disclosure of the assessor's manual would compromise the integrity and further use of the standardized test. This conclusion, which was open to her, required her to pursue her analysis further to determine whether the potential injury caused by disclosure could be avoided by the imposition of specific conditions pursuant to subsection 24(6).^[18]

[17]       It is not apparent that the Appeal Board Chairperson considered this third question. She concluded that "further disclosure to the appellants or their representatives" would compromise the integrity and future use of the standardized test. However, she does not appear to have canvassed the possible conditions under which access could be provided, pursuant to subsection 24(6), while making certain that the future use of the tests would not be compromised. Further, she did not distinguish between disclosure to the appellants and their representatives and disclosure to the representatives only. The possibility of "differential disclosure", a phrase aptly used by the respondent's counsel, is in my view contemplated by subsection 24(6).

[18]       The decisions 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 subsection 24(1); and (b) the purpose contemplated in 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. 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.

[19]       There is a further factual dimension of this case which supports this view. In an earlier interlocutory application before the same Appeal Board Chairperson,^[19] the applicants successfully challenged the restrictions imposed on the disclosure of the successful candidates' performances in the standardized test. The department had refused to provide access to the applicants' representative, Luigi Tucci, a public servant who might conceivably write a similar examination in the future. There was no objection, however, to disclose a limited number of the selected candidates' performances to the applicant's other representative, Siu Lai, himself an unsuccessful candidate in the competition under appeal. The Chairperson decided that a six-month waiting period "... could be placed on someone who has access to the exercises for purposes of disclosure. That period may possibly have to be of a longer duration given that the representative would have had access to more than just the exercise itself, but the Public Service Commission would have to make that determination."^[20] As a result, disclosure of the candidates' performances was ordered for both representatives.

[20]       Assuming, without deciding, that access to the assessor's manual could not be given to either of the applicants' two representatives in the circumstances of this case, a purposeful implementation of subsection 24(6) would require the Appeal Board to afford the applicants the opportunity of replacing Messrs. Lai and Tucci with another representative, whose personal circumstances would not jeopardize the continued use of the test or create an unfair advantage to any individual. This is similar to the solution envisaged by Justice Rothstein in Barton and Watkins.^[21]

[21]       Subsections 24(6) of the amended Regulations enables the Appeal Board to impose conditions which provide disclosure to the representative but not to the applicants. This differential disclosure should be limited to documents such as the assessor's manual or other similarly sensitive information, where access will not otherwise be provided to anyone. In other situations, the Appeal Board must follow the Court of Appeal decisions in Hasan and Kam^[22] and avoid differential disclosure. The Appeal Board may conclude that differential disclosure is the only condition under which access may be provided to meet the requirements of subsection 24(6). In so concluding, the Appeal Board, in my view, will be giving effect to the intended purpose of the amendments to limit the grounds for refusal. The goal sought in both subsections 24(1) and (6), to provide access without compromising the future use of standardized tests, will have been accomplished.

[22]       For these reasons, the application for judicial review will be allowed. The decision of the Appeal Board Chairperson is quashed and the matter is remitted to a differently constituted Appeal Board for rehearing and redetermination in a manner not inconsistent with these reasons.

                                                                                                                                       "Allan Lutfy"                     

                                                                                                                                             J.F.C.C.

Ottawa, Ontario

July 30, 1999

                                                                 SCHEDULE

Section 24 of the Public Service Employment Regulations, 1993, SOR/93-286 as amended by SOR/96-482:

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.

(2) The deputy head concerned shall provide, on request, to the appellant a copy of any document referred to in subsection (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

(a) threaten national security or any person's safety;

(b) prejudice the continued use of a standardized test owned by the department or commercially available; or

(c) affect the results of such a standardized test by giving an unfair advantage to any individual.

(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

(a) prejudice the continued use of a standardized test owned by the Commission or commercially available; or

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) L'administrateur général en cause fournit, sur demande, à l'appelant une copie de tout document visé au paragraphe (1).

(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)    soit de menacer la sécurité nationale ou la sécurité d'une personne;

b)    soit de nuire à l'utilisation continue d'un test standardisé qui appartient au ministère ou qui est offert sur le marché;

c)     soit de fausser les résultats d'un tel test standardisé en conférant un avantage indu à une personne.

(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)    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.

(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.

(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

(a) national security or any person's safety will not be threatened;

(b) the continued use of a standardized test referred to in subsection (3) or (4) will not be compromised; or

(c) the results of such a standardized test will not be prejudiced by giving an unfair advantage to any individual.

(7) Any information or document obtained under this section shall be used only for purposes of the appeal.

b)    soit de fausser les résultants d'un tel test standardisé en conférant un avantage indu à une personne.

(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) 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)    la sécurité nationale ou la sécurité d'une personne ne soit menacée;

b)    l'utilisation continue d'un test standardisé visé aux paragraphes (3) ou (4) ne soit compromise;

c)     les résultats d'un tel test standardisé ne soient faussés en conférant un avantage indu à une personne.

(7) Toute information ou tout document obtenu en vertu du présent article ne peut être utilisé qu'aux fins de l'appel.