Kenney v. Canada (Attorney General), docket T-2509-95

     T-2509-95

IN THE MATTER OF an Application to review and set aside, pursuant to section 18 and section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, as amended

AND IN THE MATTER OF a decision of the Public Service Commission Appeal Board, rendered by Joan Stewart, Chairperson, on October 25, 1995, respecting an appeal under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended (Public Service Commission Appeal Board File No. 95-PCH-0251)

BETWEEN:

     DR. BERNARD KENNEY

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     (Environment Canada)

     Respondent

     REASONS FOR ORDER

RICHARD J.:

     This is an application, pursuant to section 18.1 of the Federal Court Act, for judicial review of a decision of the Public Service Commission Appeal Board, made on October 25, 1995.

---

Background:

     The applicant, Dr. Bernard Kenney, appealed to the Appeal Board, pursuant to section 21 of the Public Service Employment Act, against the outcome of corrective action taken as a result of an earlier appeal by him against the promotions made without competition of Dr. Marlene Evans and Dr. Christiane Hudon from the Research Scientist SE-RES-2 to the SE-RES-3 level, effective April 1, 1993.

     The appointments of Dr. Evans and Dr. Hudon in April 1993 had resulted from Environment Canada's 1992 exercise to determine which Scientists were qualified for promotion to the next level.

     As a result of Dr. Kenney's successful appeal against the appointments of Dr. Evans and Dr. Hudon, the Public Service Commission directed that a new Selection Committee was to assess the qualifications of the three Scientists against the 1990 Classification Standard.

     The Public Service Commission approved the Department's choice of three Scientists to sit on the new Selection Committee. None of the new Committee members had been involved with the original selection process.

     The Committee members received a copy of each Scientist's promotion document and a copy of the applicable Classification Standard.

     The Classification Standard prescribed selection criteria of productivity, creativity, recognition, leadership and scope of decision-making, and various subcriteria under each of these headings.

     Each Committee member prepared a preliminary rating of each Scientist against the Standard.

     The Selection Committee then met to discuss the promotion documents in relation to the criteria and subcriteria in the Classification Standard. The Committee reached consensus about the qualifications of each Scientist.

     The Committee concluded that Dr. Evans and Dr. Hudon met the SE-RES-3 requirements for all five criteria listed in the Standard. The Committee concluded that Dr. Kenney met the "Scope of Decision-Making" criterion, but not the SE-RES-3 level requirements of the other four criteria.

     Dr. Kenney's appeal against the appointments of Dr. Evans and Dr. Hudon was heard on June 15 and 16 and September 21, 1995, before Appeal Board Chairperson, Joan Stewart.

Board's Decision:

     In a decision dated October 25, 1995, the Appeal Board dismissed Dr. Kenney's appeal, and summarized its fifty-three pages decision as follows:

I have not identified anything improper or unreasonable either in the manner in which the Committee assessed the 3 Scientists, or in the conclusions they reached. I am satisfied this selection process now adheres to the merit principle. Therefore I have dismissed Dr. Kenney's appeal.

Grounds relied on by the applicant:

     On this application, the applicant submitted that the following flaws resulted in a wholly inadequate process of selection:

(a)      the use of the average rate of publication to determine productivity;

(b)      the failure to assess the significance of the various authorships claimed by the candidates;

(c)      the lack of a coherent method in assessing the candidates in the subcriterion of Recognition, or with respect to the issue of "Review Articles".

     These flaws, except for the issue of "Review Articles", resulted, so the applicant claims, from the Board disregarding the evidence of Dr. Klemes.

     Dr. Klemes testified at the Appeal Board hearing on behalf of Dr. Kenney. Dr. Klemes is a Scientist who worked as an SE-RES-4 in Environment Canada from 1980 until his retirement in 1989. For two years between 1983 and 1986, Dr. Klemes served on the Departmental Committee for Research Scientists and was the Chairman of the Publications subcommittee.

Finding:

     On the basis of the record before me, the applicant has not satisfied me that the selection process was so flawed as to justify the intervention of this Court on the grounds of review set out in subsection 18.1(4) of the Federal Court Act.

     In coming to its decision, the Public Service Appeal Board preferred the evidence of the departmental witnesses to that of Dr. Klemes, who was called on behalf of the applicant. Dr. Klemes had been a member of selection committees in the past. The applicant sought to have him qualified as an expert witness with respect to the assessment of scientists for promotion. The Board ruled at the outset of its hearing that it would not recognize Dr. Klemes as an expert for that purpose "in the sense I should prefer his evidence solely because it was he who gave it." His scientific expertise was accepted.

     The Appeal Board had the benefit of lengthy evidence from Dr. Klemes, which is summarized in considerable detail in the decision. The Appeal Board had the benefit of contrary evidence from members of the Selection Committee. The Appeal Board found the evidence of the latter more persuasive than the evidence of Dr. Klemes. That fact alone is not sufficient to be a reviewable error. There is no evidence that the Appeal Board acted in a perverse or capricious manner or with disregard for the material before it.

     I will now review each of the four specific flaws relied on by the applicant.

1)      The Committee incorrectly assessed the quantity of the applicant's publications by basing its assessment on the average rate of publication.

The Board examined the frequency of publication over time, the quality of publications and sole versus multiple authorship. It took account of a variety of factors. The Board found that the Committee did not apply or impose a rate.

2)      The Committee incorrectly assessed authorships.

The Board heard and assessed the evidence of Dr. Klemes and that of the two Selection Committee members who testified. The Board recognized that there was a wide range of variables that affect, or can affect, the nature and extent of each author's contribution to a paper. The Board made a factual determination that was not shown to be either perverse or capricious.

---

3)      The Committee improperly assessed the criterion of Recognition.

The Board assessed the oral and documentary evidence. It found that the Committee applied the definition of Recognition found in the Standard and the SE-RES-3 requirements. The Committee considered literature citations, stature in the scientific community, and written reports. All of this material was also before the Board.

4)      Dr. Hudon had not published a "Review Article" but one Committee member has noted that she was capable of reviewing.

The Board noted that this is one of the few undefined subcriteria, for Productivity. The Board found that this notation could not be read in isolation from the actual conclusions about the Scientists gathered from all the material. The applicant has not shown any reviewable error.

     The applicant also raised the failure of the Board to give written reasons for its decision that a complete re-assessment was appropriate in the circumstances. The applicant has not raised this decision as a ground for judicial review. The applicant has not shown any prejudice to it by the failure to give such reasons.

---

     Accordingly, the application for judicial review is dismissed.

    

     __________________________

     Judge

Ottawa, Ontario

February 25, 1997