Chappell v. Canada, docket T-844-96

     T-844-96

BETWEEN:

     CLAY CHAPPELL, ANN ELIZABETH MROUÉ,

     MICHAEL VIZINTIN and STEPHEN ZIMMERMAN

     Applicants

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

Nadon J.:

     Clay Chappell, Ann Mroué, Michael Vizintin and Stephen Zimmerman (the "Applicants") all seek to set aside a decision of Appeal Board Chairperson, Mr. J. Ojalammi, dated March 6, 1996. The case was before Mr. Ojalammi by way of appeal against three¹ acting appointments made by Mr. Sheridan, who was the sole member of the Selection Board. The facts which give rise to this application are the following.

     Some ten months prior to the appointments which these Applicants appeal, a competition was commenced for the position of a Superintendent at Customs Excise. A taxation "Supervisory In-Basket Exercise" ("SIBE") was administered for this position but this earlier competition was never completed. During the competition for Customs Superintendents with Revenue Canada, the competition at issue here,² the results of the previously administered SIBE were used. Candidates who had not received a passing mark on the SIBE were eliminated from this second competition.

     The sole member of the Selection Board, Mr. Sheridan, looked at the applicants" records and determined that nothing in their respective files indicated that, in the ten months since writing the SIBE, the Applicants had received training or practical experience which could impact on their respective scores. Therefore, the SIBE was not re-administered for any of the candidates and the competition proceeded on the basis of the existing SIBE scores. The Applicants before me were screened out of the competition as they had not received a passing mark on the SIBE.

     The Applicants allege that the process by which this competition was conducted was not in accord with the merit principle. In reviewing the decision of the Selection Board, the Applicants allege that the Appeal Board itself did not uphold the merit principle because it refused to interfere with the decision of the Selection Board.

     At this point it will be helpful to briefly review the function of each of the boards dealt with here and the role of this court on an application for judicial review of the Appeal Board decision. Section 10 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "Act") provides:

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.

     The function of the Selection Board was described by Pratte J. in Laberge v. Canada (Attorney General), [1988] 2 F.C. 137 at 142 where he stated:

The selection board is only a tool used by the Public Service Commission to carry out the duty imposed on it by s. 10 of the Public Service Employment Act. The Department does not have the power to alter the obligations imposed on the Commission by s. 10 of the Act.

     Thus, the Selection Board is obligated to choose the most meritorious candidate for the position and the identity of this person may be established by testing.

     The role of the Appeal Board is to hear appeals of appointments made by a Selection Board and to determine whether the Selection Board adhered to the merit principle. In Scarizzi v. Marinaki, [1994] F.C.J. No. 1881 Rothstein J. stated at 14:

The role of the Appeal Board is not to ensure that examinations have been marked properly. It is to ensure that a Selection Board has adhered to the merit principle in the process it adopts...[A]n Appeal Board should restrict itself to interfering with a decision of a Selection Board only where the Selection Board"s decision was obviously unreasonable.

     Thus, the appeal board must determine whether the actions and decisions of the Selection Board were reasonable.

     Section 21 of the Act provides:

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.

     ...

(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.

     This application for judicial review of the decision of the Appeal Board is made pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. Section 18.1 provides:

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

(3) On an application for judicial review, the Trial Division may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

     The grounds upon which the Applicants bring this application for judicial review are the following. First, the Applicants allege that this SIBE was an inappropriate tool because it did not measure the relevant qualifications. This argument stems from the fact that the SIBE was created by experts at the Taxation branch but the competition at issue was for a Customs Superintendent. A supervisor with Customs is required to supervise front-line peace officers which is very different from supervising employees in an office environment. As such, the test only partially assessed the required ability of applicants and did not test some abilities which may be even more important than general supervisory ability.

     Second, the Applicants allege that the SIBE was an inappropriate tool when used to screen candidates. The SIBE information booklet provided by Revenue Canada states that the SIBE is not recommended for screening purposes. The Applicants therefore conclude that the Selection Board committed an error when it used the SIBE to screen as the appropriate use of the SIBE is that it be considered as one element of assessment only.

     Third, the Applicants allege that, because of the age of the test results, they should have been given the opportunity to re-write the test in accordance with the departmental policy which states that a test may be re-written after 180 days. In addition, the Applicant alleges that the Appeal Board asked itself the wrong question. Instead of turning its mind to the question "how long is too long", i.e. between re-writes, the Board assumed the original scores were valid and then considered whether any intervening events were likely to have changed the scores.

     Finally, the Applicants allege that the method of marking the tests violated the merit principle in that any "unusual answer" was given the same mark as a wrong answer. Furthermore, as the answers deemed to be correct were those supplied by tax specialists and not customs specialists, the marking scheme in place for the test was flawed.

Analysis

     With respect to the first ground of review, as I understand the Applicants" position, the assertion is that the SIBE measured only a small portion of the requisite abilities. Furthermore, the Customs Superintendent"s duties are radically different from those required of a supervisor in an office environment. Thus, the SIBE should not have been used at all in this competition as it measures irrelevant qualities.

     The Appeal Board found as a matter of fact that the SIBE measured generic and not job specific abilities. It cannot be said that this finding was made in a perverse or capricious manner or without regard to the evidence. The evidence of Mr. Majid, one of the authors/designers of the test, was to this effect. Furthermore, Mr. Majid testified before the Appeal Board that the use of tax experts to help in the development of the test was irrelevant because of the fact that the abilities tested were not job specific. Finally, the evidence reveals that Mr. Sheridan, who sat as the Selection Board, consulted with Mr. Majid and determined that the test was appropriately administered in the context of this competition.

     Although I agree with the Applicants" contention that there is a significant difference between supervising employees in an office setting and supervising peace officers at the airport, I accept wholeheartedly the position taken by both the Appeal Board and the Selection Board that general supervisory abilities are required of a Customs Superintendent. This does not mean that additional abilities are less important. However, the abilities tested by the SIBE and required for all types of supervisors are the bare minimum and the starting point for assessing general supervisory ability. It may be a requirement that a Custom"s supervisor have more skills than a tax supervisor working in an office setting. However, the fact remains that every supervisor must possess the basic, non job specific ability to supervise. All of the evidence indicates that this is what was tested by the SIBE. The Appeal Board decision that the use of this test was in accordance with the merit principle does not amount to an error of law or fact nor any other error discussed in ss. 18.1(4).

     The second ground put forth as a basis for review is very closely connected with the first. The Applicants argue that, even if the SIBE was legitimately used in this competition, it was not a valid test upon which applicants should be screened out of further competition. The booklet written by the designers of the test recommends that it not be used as a screening device. More particularly, the Applicants contend that the screening of the Applicants on the basis of this test meant that their abilities in other areas were unassessed. Furthermore, the Applicants argue that it is possible that candidates may not have passed the SIBE but may do so well in other areas that, despite a failing mark on the SIBE, the candidate may nonetheless be the best qualified candidate for the position overall. The following two paragraphs from the written submissions of the Applicants summarize their position:

27.      Reliance upon the In-Basket Exercise for the automatic elimination of candidates further departs from the merit principle in that it fails to measure all duties and abilities required by the successful candidate for the position of Supervisor at Customs Excise. The Appeal Board must determine whether the failure to assess candidates in terms of all the requirements of the position violates the merit principle.

29.      The In-Basket Exercise was not the sole assessment tool for the candidates. In the present case, the failure to assess the candidates in terms of the other requirements of the position as a direct result of the automatic elimination of the candidates violates the merit principle.

     Section 7 of the Information Booklet which accompanies the test is titled "The Use of the Exercise Within the Selection Process" and the second paragraph thereunder states:

We do not recommend using the Supervisory In-Basket Exercise for initial screening. It may be used for ranking or rating supervisory abilities. It should be used in combination with assessment information from other sources such as the interview, reference checks etc. For ranking and rating, in addition to the total test score, the selection board may use any of the six ability scores assessed by the exercise. The selection board determines the actual weight to be given to each ability, as well as to other sources of information used in the selection process.

Counsel for the Respondent dismissed the above-quoted statement as a mere recommendation and in no way binding on the Selection Board.

     There appears to be a difference of opinion between the parties as to what the Federal Court of Appeal meant when it stated in Laberge, supra at 143:

The merit principle requires that the candidate be selected who, at the time of the competition, is best able to perform all the duties specified in the competition notice.

     I cannot agree with the Applicants that this statement requires that all candidates be assessed with respect to all abilities. Common sense dictates that the Selection Board be able to screen out candidates who do not possess skills which are required for the position at issue. In order to do this, nothing prevents the Selection Board from establishing which abilities are the most crucial and then screening out candidates who do not possess at least the most basic of these skills. Requiring a Selection Board to assess all of the abilities of all candidates, even once it is determined that they do not possess the necessary basic skills, imposes an overly onerous burden on the Selection Board and does not enhance the merit principle. Indeed, the merit principle is followed by screening out those candidates who do not possess skills which, although not the only abilities necessary to perform the job at issue, are a minimum requirement. Thus, Mr. Ojalammi stated at page 10 of his decision:

In the context of this staffing action, the In-Basket Exercise was not the only assessment tool used. Thus it cannot be said that the qualifications that it assessed were the only ones assessed in this staffing process. Here the selection board determined that attaining the minimum standard in the Exercise was a sine qua non for further consideration, i.e. assessment against the qualifications not covered by the Exercise. Given the supervisory responsibilities of the position, this decision is not unreasonable. Naturally persons who do not meet the minimum standard are not further assessed. But simply because a person is a candidate in a staffing action does not entitle that person to be assessed against each and every qualification set for that process. All such a person is entitled to is to have his or her qualifications rated by the selection board to the extent necessary for the board to determine whether he or she is qualified and if so, to determine the relative merit of the persons found fully qualified.

     The appropriateness of using the SIBE in relation to the staffing of this position was considered by Mr. Sheridan who discussed the SIBE with Mr. Majid in order to determine whether the exercise would measure those abilities required of a supervisor at Customs. The persons who were selected to fill these positions reported to Mr. Sheridan. He knew what skills were required of an individual to fill these positions. Mr. Majid knew what skills were tested by the exercise. Together these two individuals determined that the SIBE was appropriate in the circumstances. As Mr. Ojalammi stated, it was not unreasonable that the SIBE be used in this way.

     The third ground of review is that, even assuming that the test was appropriately used in relation to this competition and that it was appropriate to screen candidates on this basis, the results of this particular sitting of the exercise were ten months old and the SIBE should therefore have been re-administered.

     In support of this contention, counsel for the Applicants referred the court to the departmental policy of allowing rewrites after 180 days. However, it is crucial to note that the policy stipulates that persons should not be allowed to rewrite within 180 days in order to lessen skewed results obtained because candidates were able to remember the questions from a previous sitting. Thus, while no one should be allowed to rewrite within 180 days, there is nothing in the policy which stipulates that persons have the right to retake the exam once 180 days have expired. The real question, as both counsel put it, is whether the exam results, in this context, were so old as to be of no objective use.

     The record is clear that Mr. Sheridan examined the personnel files of all of the candidates to see if they had received any training or experience since taking the SIBE which might impact on their respective scores. At this juncture it is critical to note that the record reveals that Mr. Majid stated clearly that the test measures abilities and not knowledge. Thus, only training or actual experience would alter a person`s ability to perform at a significantly higher level on the SIBE.

     Counsel for the Applicants however states at paragraph 20 of the written submissions:

The selection board ignored the possibility that the most meritorious candidate may have been ill or unable to perform well for a number of valid reasons...It is extremely possible that the results may simply reflect that the most meritorious candidate had a bad day...

     I must concur with counsel and say that the scenario described above is possible. However, the same would be true with respect to any test or examination whenever it is administered. People have bad days and some people do not do well on certain tests because of any number of events in their lives. Does this mean that every test should be administered innumerable times simply to ensure the most accurate results possible? This would lead to never-ending testing. The fact that the test results are ten months old is completely unconnected with the fact that the most meritorious candidate may have had a bad day. Finally, there is no obligation on the part of the Selection Board to create a fool-proof system for the selection of absolutely the most meritorious candidate every time. The only requirement is imposed by section 10 and it requires only that selection be based on merit. Perfection on the part of the Selection Board is not required nor is perfection in the candidate selected.

     The final issue raised by the Applicants is that "unusual" answers were marked as if they were wrong answers. Counsel for the Applicants stressed that the answers supplied as being correct were from experts at a different department and therefore unusual answers were wrong in one department but not necessarily in the other. Thus, counsel argued, the wrong experts were used.

     The answer to this point is very simple. Even if it were true that the wrong experts had been used and therefore some of the answers provided by these candidates might have been correct in the context of Customs but incorrect according to the tax expert, the record reveals that Mr. Majid did look at the "unusual" answers provided from the candidates who took the SIBE here at issue and concluded that they were in fact wrong answers. At page 13 of the Appeal Board decision Mr. Ojalammi states:

He [Mr. Majid] also offered his opinion that the vast majority of the "unusual actions" he had seen were obviously incorrect responses. For example, in the answers provided by candidates involved in the present staffing action and deemed "unusual actions" were a response of "TR" and other instances where the indication was "no action required" while the acceptable answers all contained some type of action. However, he did indicate that over the years he had seen a couple of "unusual actions" that might have been worthy of being acceptable answers; this had not occurred in the answers of candidates in this staffing action.

     Thus, it cannot be said that the SIBE, as administered, did not measure the relative merit of the candidates for the positions here at issue. The SIBE measured generic supervisory abilities acquired through training and experience. Although the skills tested were not the only ones necessary for the successful candidates, they were important and basic enough that candidates who did not demonstrate these basic skills did not proceed through any further stages of competition. The successful candidates had to demonstrate at least the basic abilities. The tests were all marked on the same basis, i.e. according to the answers in the manual, and Mr. Majid reviewed all of the "unusual" answers to determine if any anomalies were present. There were none. The results were ten months old but this was determined to be not "too long" as the SIBE measured abilities and not knowledge. Furthermore, there was no requirement that the test be re-administered after 180 days.

     For all of these reasons the application will be dismissed.

     "MARC NADON"

     JUDGE

Ottawa, Ontario

May 13, 1997

     T-844-96

Ottawa, Ontario, this 13th day of May, 1997.

Before the Honourable Mr. Justice Marc Nadon

BETWEEN:

     CLAY CHAPPELL, ANN ELIZABETH MROUÉ,

     MICHAEL VIZINTIN and STEPHEN ZIMMERMAN

     Applicants

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     ORDER

         This application for judicial review is denied.

     "MARC NADON"

     JUDGE

__________________

¹      One of the acting appointments ended before the hearing of the appeal and therefore the appeal with respect to that appointment was withdrawn and does not form a part of this judicial review application.

²      The relevant distinction between these two positions, despite the similarity in the nomenclature, was explained as being that the first competition was for supervising in an office setting whereas the position at issue here involved the supervision of front-line peace officers.