Kite v. Canada (Attorney General), docket T-1143-95

     T-1143-95

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 April 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-DOE-0364X, 95-DOE-0365X and 95-DOE-0499J)

Between:

     DR. GEOFFREY W. KITE,

     Applicant,

     and

     ATTORNEY GENERAL OF CANADA

     (Environment Canada),

     Respondent.

     REASONS FOR ORDER

MULDOON, J.:

     This is an application for an order setting aside the decision of the Public Service Commission Appeal Board ("board") dated April 25, 1995, where the board dismissed Dr. Kite's appeal under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-32 ("Act"), against the promotions of Dr. Harold Ritchie, Dr. Richard Leaitch and Dr. Norman McFarlane with Environment Canada. Dr. Kite's case was heard concurrently with that of Dr. Bernard Kenney v. Attorney General of Canada (Environment Canada) (T-2236-95).

     Dr. Kite is a hydrological scientist at the National Hydrology Research Institute ("NHRI"), a body operating under the aegis of Environment Canada. He sought promotion to the SE-RES-4 level in 1992, 1993 and 1994. The promotion process operates as follows. The NHRI'S review committee initially screens candidates against the classification and promotion standard. If the candidate passes this threshold, his or her promotion documents are forwarded to the Conservation and Protection Service Promotion Committee ("C & P committee"). The C & P committee then determines if the candidate meets the classification standard. If so, the C & P committee recommends the candidate to the Departmental Promotion Committee ("DPC"), who will consider making appointments under section 10 (1) of the Act. The DPC also receives recommendations from the Atmospheric Environment Service ("AES") Promotions Committee. Section 10 (1) of the Act reads thus,

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 if personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.

Mr. Justice Décary in this Court's Appeal Division, commented on this process in Leckie v. Canada, [1993] 2 F.C. 473. In essence, he found that the mechanism is a four-level incumbent-oriented, not position driven, process. Promotion requires assessment against classification levels which centre on productivity and achievement.

     In 1992, Dr. Kite applied for promotion and passed the NHRI review level. His promotion documents were forwarded to the C & P committee. Although he fulfilled 15 of the 16 subcriteria of the promotion standard, the C & P committee rejected his application. The ground for rejection was that the committee did not find that Dr. Kite met the leadership criterion. No one else was promoted that year.

     In 1993, Dr. Kite again applied for promotion. His documents were initially screened by three division chiefs at the NHRI, who were acting in the absence of the director. When the new director, Dr. Halliday, was appointed, the

applications were formally considered by the NHRI review committee. The committe found Dr. Kite's application to be deficient in the leadership category. They did recognize, however, that he had been named chair of the Remote Sensing Working Group several months prior. Their conclusion was that it was too soon to determine the impact of this role on the "program leadership" subcriterion. Accordingly they decided not to recommend his application to the C & P committee. The committee did allow Dr. Kite to submit further material in support of his application. Unfortunately for the applicant, his reply did not address "program leadership". Instead, he dealt with "Scientific Leadership". On this basis the NHRI committee did not reconsider its decision. That year, three other scientists, Ritchie, Leaitch and McFarlane, were promoted to the SE-RES-4 level and it was against their promotion that the section 21 appeal was made. It was from that unsuccessful appeal that judicial review to this Court was taken. Dr. Kite was ultimately successful in his 1994 promotion application as he was able to show that his leadership abilities fulfilled the necessary rquirements by that time. He nevertheless persists in the present application to bring down the 1993 promotions of the other three scientists.

     In dismissing the appeal, the board found that the NHRI committee, in particular Dr. Haliday, was entitled to use the 1992 C & P committee decision as a threshold, viz, there was nothing improper in reviewing only Dr. Kite's program leadership skills to see if they would warrant any change at the C & P level. Further, it found that the 1992 promotion was not under appeal and therefore, without any evidence to the contrary, it was deemed to be correct. The board stated at page 31 [decision pagination] of the decision:

...according to the jurisprudence, in a selection process conducted under the Public Service Employment Act, a department is deemed to have done things in a proper manner in the absence of evidence to the contrary, and the 1992 decision was not what was under appeal. In relation to this case, my point is that Mr. Halliday had no reason, or obligation, to even consider making a critical review of the 1992 decision, to decide whether he thought the C and P Committee erred in 1992. He was entitled to take the approach that they had not, as a starting point, as long as he did not find that it was perverse, and he stated that he did reread Dr. Kite's promotion document...

     It was the board's view that as long as the NHRI committee did not find the 1992 decision of the C & P committee to be perverse, it was acceptable for the NHRI to use the C & P decision as a starting point. "The NHRI was in no way obliged to repeat what they could have viewed as an error in 1992, when his qualifications, which the C & P committee had not accepted, had not changed; and accordingly the board found that the NHRI acted properly in not again recommending Dr. Kite's application to the C & P committee (board decision p. 32).

     Subsection 21 (1) of the Act reads as follows:

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.

The role of the board under this section is to determine whether promotions had been made in accordance with the merit principle. The board does not have the jurisdiction to reassess merit. In the words of Justice Martland in Lee v. Canada (A.G.), [1981] 2 S.C.R. 90">[1981] 2 S.C.R. 90,

the task of the Appeal Board under s. 21 is to determine whether the selection process as a whole has been conducted in accordance with the merit principle, but not to substitute its opinion for that of a selection board on the merit of a particular candidate. (p. 96).

Further the board must determine that the NHRI's assessment of Dr. Kite's merits was made reasonably (Madracki v. Canada (1986), 72 N.R. 257 (F.C.A.). As well, not surprisingly, on judicial review of a Public Service Commission Appeal Board decision, the reviewing Court may not substitute its own opinion for that of the board (Evans v. P.S.C. Appeal Board, [1983] 1 S.C.R. 582">[1983] 1 S.C.R. 582 at 599).

    

     The first question on this review is whether the board erred by failing to exercise jurisdiction in not examining the reasonableness of the 1992 C & P decision. The applicant submits that the reasonableness of the 1992 decision should have been reviewed by the board because it was enshrined in the 1993 NHRI committee decision not to forward Dr. Kite's application to the C & P committee. The 1992 decision was not appealed under section 21 because there were no successful candidates that year (Leckie v. Canada, [1993] 2 F.C. 473).

     The board was correct in declining to rule on the correctness of the 1992 C & P decision. To have done otherwise would have been in sheer ignorance of the wording of the section and a longstanding line of jurisprudence from the Federal Court of Appeal which states that the section allows the board only to confirm or revoke any appointments, e.g., Leckie v. Canada, [1993] 2 F.C. 473 (C/A.); Shannon v. Canada (A.G.), [1993] 1 F.C. 331; Noel v. Canada (Minister of Employment and Immigration (1991), 136 N.R. 398; Charest v. Canada (A.G.), [1973] F.C. 1217. One cannot be oblivious to the key word in the section, appointments. As well, while it went to the heart of the issue before the board, it was not the actual decision that was appealed. As will be noted below, the board probably made, unnecessarily, a vicarious assessment of the 1992 C & P decision in its comparison of Dr. Kite's 1992 and 1993 promotion documents. One must note that this does have the effect of consigning the decision to "legal purgatory", redeemable only upon judicial review. In view of the foregoing, the applicant's submission that the 1992 C & P decision was not res judicata is entirely correct but of no relevance. It would have been beyond the board's jurisdiction to readjudicate that decision.

     The second question, almost incestuously related to the first, is whether the board erred in finding that the NHRI committee was reasonable in concluding that the applicant did not meet the program leadership subcriterion. As the NHRI focussed on this criterion and found insufficient improvement from the past year's C & P assessment to pass the application on to the C & P committee, the applicant submits that the board erred by approving the NHRI's method.

     In oral argument, counsel for the applicant framed the issue before the board as follows. There were two decision making levels, the NHRI committee and the C & P committee. The NHRI committee could veto an application from going forward to the C & P committee. The other stream, the Atmospheric Environment Service ("AES"), did not have such a mechanism (transcript, pages 1-4). Put this way, counsel alluded that the process was fraught with potential unfairness because scientists from the C & P stream had an added hurdle which those in the AES did not have. It is the applicant's submission that he was knocked out of the process at NHRI level because of an alleged misapplication of the standard when Drs. Leaitch and McFarlane, coming from the AES stream, had the standard applied properly without any added obstacle akin to the NHRI screening committee (transcript, page 47).

     Fundamental to the applicant's argument was that in the 1993 "veto", the NHRI committee did not even bother to apply the standard. The NHRI simply looked at the documents and found no significant change. It would have been premature to assess the impact of the recent appointment of Dr. Kite to chair of the Remote Sensing committee on his program leadership qualities. The applicant further submits that not all subcriteria of the standard had to be met. The three successful applicants did not meet all of the subcriteria, nor, in the applicant's submission, were they required to (board decision, p. 38; transcript 51).

     It is the applicant's position that the board believed the standard's criteria to be a checklist and that the NHRI committee did not err in refusing to Dr. Kite's application on the grounds that there had been no change in "program leadership". With respect to applying the standard itself, it was not crucial that all of the subcriteria needed to be met. In essence, the applicant submits that there had to be a sui generis evaluation made by the C & P committee (transcript, page 49-50) and that evaluation required a subjective evaluation of the candidate's application which did not require strict fulfilment of the program leadership criterion. In upholding the NHRI committee's method, the applicant submits that the board committed an error in law.

     This argument fails for three reasons. First, there was no reason for the NHRI committee to make a completely new evaluation of Dr. Kite's promotion. The standard had not changed, nor had Dr. Kite's application. The board actually looked at the 1992 and 1993 documents and confirmed this: "the nature of the allegations obviously obliged me to read all of the promotion documents, and as the Department argued, the two documents do most certainly speak for themselves... I would roughly estimate 95% or more to make my point." (board decision, p. 29). To go through the motions of assessment was not necessary. To resubmit the unchanged 1993 application to the C & P committee in face of its 1992 decision, based on essentially the same document, would fly in the face of the original C & P decision. The C & P committee must make a more thorough examination of the application documents than the screening process done by the NHRI committee, as the former makes the ultimate recommendations to the Department.

     In the 1993 NHRI evaluation Dr. Halliday even allowed the applicant a chance after the refusal to explain why his document should be reconsidered (board decision p. 29). At the hearing before the board, the applicant was again allowed the chance to elucidate the difference between his 1992 and 1993 applications: "Dr. Kite did identify some of what appeared in Exhibit A-7 in different terminology, but on the basis of his oral evidence I have no reason to believe anything was in fact different from what appeared in the promotion documents." (board decision, p. 29). What the issue would have turned on, regardless of how the NHRI assessed the application, was whether Dr. Kite fulfilled the program leadership subcriterion. The board made its own independent finding of fact that he did not meet the standard's requirements in 1993. It also found that the applicant's successful 1994 promotion document was markedly superior to the 1992 and 1993 applications in its approach to the standard:

...In addition to the extensive rewriting, what struck me was his systematically and specifically relating his work to the department's priorities, something he had not done at all in his 1992 and 1993 promotion documents. Dr. Kite obviously put a lot of effort into his 1994 document. He may claim, and may very well believe, that there were no significant differences between 1993 and 1994 - but that is not what his 1994 promotion document indicates to me... (Decision, p. 33)

In doing so, the board made that finding with full regard to the evidence before it and thus made no capricious or perverse error of fact. In this case, there was no "disregard of material before the tribunal of such a nature as to amount to an error of law or to give rise to an inference that some erroneous principle has been followed." (Dansereau v. Canada, [1991] 1 F.C., 444 (C/A.) at 463).

     The second reason concerns the fairness of the system, which the applicant insinuated was fraught with potential pitfalls. In argument counsel for the respondent referred to Blagdon v. Public Service Commission, [1976] 1 F.C. 615 (C/A.). That case stands for the proposition that with something as purely administrative as assessing a promotion based on merit, there is no reason why the assessors cannot proceed with their personl knowledge of the applicant. The

respondent submits that this means that the system at issue in this case, as in Blagdon, is merely an administrative process and as such one has to live with the process (Transcript, pp. 115-119). The applicant argued that the board was wrong in finding that in the absence of evidence to the contrary the 1992 C & P decision must be taken to be correct (decision, page 31). True, a rejection by the NHRI committee will obviate a section 21 appeal but judicial review of such a decision is always available. The existence of this mechanism in the C & P stream and not the AES stream is the result of a purely administrative decision, and both promotions streams operate in a purely administrative framework. It is only when appointments are actually made that the appeal process is available. It would be inappropriate at this point to adjudicate the fairness of the existence of an extra threshold in one stream and the absence of another when there is no evidence of the system breaching procedural fairness, or if it even attracts it.

     The third reason is that the board correctly concluded that the NHRI committee correctly applied the standard. The position of the board, as noted in Lee, supra, is only to find whether the C & P committee came to a reasonable conclusion based on the applicant's merits. What was before the board was the method. That the board realized this, is evident from the decision: "I confirmed during the hearing that it was not my role, and I certainly didn't have the expertise, to reassess Dr. Kite or the successful scientists." (board decision, p. 28).

     The standard (exhibit 1) states that "[I]t is recognized that a scientist may not contribute in all aspects of each criterion. However, an individual scientist will usually have met most criteria requirements before being considered for promotion." (standard, exhibit 1, p. 6). What this means is that while it is not absolutely necessary for a person to meet each and every one of the criteria, it is in the hands of the reviewing panel to determine if an applicant who has not met the criteria should be recommended for promotion. In Dr. Kite's case, both the

C & P in 1992 and the NHRI in 1993 found that his particular circumstances did not warrant their recommendation. The board understood that there exists substantial discretion in the hands of the reviewing body. This is evidenced by the comment: "I found that the standard made its intent as clear as it could then it left an enormous amount of discretion and judgment to whoever would be assessing scientists for promotion." (board decision, p. 38). The board not only affirmed the 1993 NHRI's method, but waded into the documentation and made a strong finding of fact that indeed the NHRI was correct in their assessment. While another reviewing body may have come to a different conclusion, especially with respect to applying the standard (decision, page 38) the legal decision, - the assessment of the NHRI's decision, made on these facts, does not constitute a reviewable error of law.

     Counsel for the applicant also submitted orally that the appointment process should be void ab initio because in these circumstances the board imposed an analytical framework used for assessing the fairness and reasonableness of a conventional promotion appointment under subsection 10 (1) of the Act when in fact the whole process should have been done under subsection 10 (2). For subsection 10 (2) to operate, the Public Service Commission must delegate the power to the relevant department (Peet v. Canada (A.G.) T-738-95 January 18, 1996. As both counsel acknowledged, this did not happen in this case. At the end of the day the promotion was made pursuant to subsection 10 (1) which, incidentally, does not mandate a competition. The question before this Court is whether the board's method constitutes an error in law. It does not. At this point it is simply a matter of hindsight that the promotion should have made under section 10 (2), and this required delegation from the Public Service Commission. The board was correct in employing a section 10 (1) anlaysis because the promotion, as all parties seem to agree, was made under section 10 (1).

     In light of the foregoing reasons, this application for judicial review is dismissed. The Public Service Commission Appeal Board's decision of April 25, 1995, is affirmed.

     "F.C. Muldoon"

     Judge

CALGARY, Alberta

October 29, 1996

     T-1143-95

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 April 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-DOE-0364X, 95-DOE-0365X and 95-DOE-0499J)

Between:

     DR. GEOFFREY W. KITE,

     Applicant,

     and

     ATTORNEY GENERAL OF CANADA

     (Environment Canada),

     Respondent.

==========================================

     REASONS FOR ORDER

==========================================

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:      T-1143-95

STYLE OF CAUSE:      Dr. Geoffrey W. Kite v. Attorney General of Canada

PLACE OF HEARING:      Ottawa, Ontario

DATE OF HEARING:      April 10, 1996     

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MULDOON

DATED:              October 29, 1996

APPEARANCES:

     Mr. Dougald E. Brown          for the Applicant

     Mr. Geoffrey S. Lester          for the Respondent

SOLICITORS OF RECORD:

    

     Nelligan Power

     Ottawa, Ontario      for the Applicant

     George Thomson

     Deputy Attorney General of Canada

     Ottawa, Ontario      for the Respondent