Canada (Attorney General) v. Thompson, docket T-2545-95

T-2545-95

IN THE MATTER of an application to review and to set aside, pursuant to section 18 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, an interlocutory decision of an Appeal Board established pursuant to subsection 5(d) of the Public Service Employment Act, 1995, respecting certain appeals brought pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (P.S.C. Files 94-TAX-0726, -0727, -0728, -0729, -0840 & -0841)

BETWEEN:

ATTORNEY GENERAL OF CANADA,

Applicant,

- and -

GREGORY THOMPSON, LORI O'CONNOR,

JANET DE KERGOMMEAUX, MICHEL LAROCHE

and KIM WICKER

Respondents.

     REASONS FOR ORDER

WETSTON J.:

         This is an application for judicial review of an interlocutory ruling, dated October 13, 1995, by a Public Service Appeal Board (the "Appeal Board") established by the Public Service Commission. The ruling relates to requests by Revenue Canada (the "Department") to protect the confidentiality of the Supervisory In-Basket Exercise (the "SIBE").

     The respondents in this matter unsuccessfully participated in a number of competitions at Revenue Canada. A high percentage of the candidates failed the SIBE, including the respondents in this case. In accordance with the rules of the selection process, after failing the SIBE the respondents were not permitted to advance to the next stage of the competitions. The respondents filed a number of notices of appeal against the various selections made for appointments pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "Act"). A number of successful candidates also participated as intervenors in the appeals before the Appeal Board. It is not clear how many of the selected candidates participated in these appeals but the decision of the Appeal Board appears to indicate that there were at least three.

     The SIBE is designed to assess a number of non-compensatory qualifications with respect to the candidates' abilities in leadership, human resources, thinking skills, management, and written communication. The SIBE documents are generally considered by both parties to be confidential and comprise the following: 1) the scoring manual; 2) the exercise proper; 3) the unsuccessful candidates' responses; and 4) the successful candidates' responses. The respondents do not contest that the SIBE documents are generally confidential, but note that the issue before the Appeal Board is whether the documents are to be kept confidential from the respondents in the present circumstances. The selected candidates were unrepresented before the Appeal Board and before the Federal Court.

     The Department filed extensive written arguments before the Appeal Board and requested that the board protect the confidentiality of the SIBE in the following manner: 1) certain information was not to be entered on the public appeal file but kept in the custody of the Appeal Board in an envelope clearly marked confidential; 2) the above documents were not be reproduced in whole or in part in the Appeal Board decision; 3) the above documents were to be returned to Revenue Canada shortly after the expiry of the 30-day appeal period to the Federal Court; and 4) any part of the appeal hearing that deals with the above named documents would be heard in camera (i.e. the respondents and intervenors and any other member of the public in attendance would be excluded for that portion of the hearing).

     Prior to the hearing, the Department made full disclosure to the respondents' representatives on condition that the representatives not disclose the material to the respondents. There was some dispute at the Appeal Board hearing regarding the representatives' acceptance of this condition regarding disclosure. Regardless, at the time of the hearing, the respondents' representatives had been given full access to the confidential SIBE documents, including the responses of the respondents and of the selected candidates. The Appeal Board was asked to determine whether the representatives could disclose the confidential materials to the respondents and whether the respondents could be present at the hearing when the confidential material was being discussed.

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The Board's Ruling

     The Appeal Board ruled in favour of the Department's first request that the confidential materials be kept in a separate court file marked confidential but refused to grant the second request on the following basis:

I cannot, however, grant the Department's request that I undertake not to produce the above mentioned documents in whole or in part in the Appeal Board decision. One must bear in mind that the Appeal Board's decision must be supported by reasons. Of course, I will refrain from reproducing any part of the exercise where it is possible to do so and I doubt that it will be necessary to reproduce them, but I cannot take that decision without hearing the evidence and arguments on the merits of this case.

The Appeal Board also granted the third request regarding the return of the documents, noting that the respondents did not object to returning the materials to the Department within 30 days.

     The Appeal Board ruled in favour of the first part of the fourth request which calls for the exclusion of members of the public from that portion of the hearing dealing with the allegations concerning the SIBE. The Appeal Board recognized that it was propitious to limit public access to the SIBE because it is a standardized test developed at great cost and exposing the answers could compromise its continued use. The Board, however, refused to grant the second and third parts of the fourth request which called for the exclusion of the respondents and the intervenors (selected candidates) from that part of the hearing which deals with the allegations concerning the SIBE.

     The Appeal Board allowed the intervenors to be present throughout the hearing. The intervenors had no representation in the hearing, had not been given prior disclosure of the confidential documentation and wished to be present throughout the entire hearing. The Appeal Board determined that the right to be heard contemplates the right to participate throughout the hearing, including when the confidential information is presented. Moreover, the Board determined that it was inappropriate to require the selected candidates to have representation. The unsuccessful candidates were represented by members from the Public Service Alliance of Canada, but the union does not provide representation to the successful candidates before the Appeal Board.

     Finally, with respect to the appellants presence throughout the hearing, the Appeal Board dealt with the request of the Department for confidentiality on the following terms. The Board noted that the SIBE must be protected as much as possible and that undue access to confidential parts of the test is to be avoided. To accomplish this, the Board established the following procedures regarding the disclosure of the confidential material. The appellants and selected candidates were directed to refrain from taking notes at the hearing when confidential information is discussed. Selected candidates were to undertake not to divulge the confidential information to anyone, while the appellants were to undertake not to divulge it to anyone except their representatives. The representatives were advised to avoid undue reference to contents of the exercise during the hearing. The Appeal Board ruled that where a representative felt it was necessary to refer to the confidential materials during the hearing, that person would have to request the Board's permission to refer to the materials and the Board would then make a ruling with respect to each request. The representatives would be required to establish that they cannot make their argument without reference to the confidential documentation. The representatives would also be required to apply to the Board in order to discuss the contents of the confidential materials with the respondents. The representatives would again be required to establish that disclosure to the respondents was necessary to make their case.

     The Appeal Board relied, among other cases, on the decision in Barton and Watkins (1993), 66 F.T.R. 54 (T.D.). Moreover, the Appeal Board recognized, in rendering its decision, the public cost of developing the test and the possibility that undue access would compromise the continued use of the test through an unfair advantage to the appellants. Accordingly, the Appeal Board adopted the procedures as outlined above regarding disclosure in the context of the right to be heard by both the appellants and the intervenors.

Analysis

     The Public Service Appeal Board is a statutory body governed by the Act and the Public Service Employment Regulations, SOR/93-286 (the "Regulations"). Section 21 of the Act notes that the Commission shall establish a board to conduct an inquiry at which the person appealing and the Deputy Head concerned, or the representative, shall be given an opportunity to be heard. It is clear that a successful candidate also has a right to be heard at such an inquiry: Schwartz v. The Queen, [1982] 1 F.C. 386 (C.A.). According to subsection 21(2) of the Act, the Commission, on being notified of the decision of the Appeal Board, shall, in accordance with the decision, if the appointment has been made, confirm or revoke the appointment, or, if the appointment has not been made, make or not make the appointment.

     With respect to document disclosure, subsections 24(1), (2) and (3) of the Regulations provide as follows:

24.(1) 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.

(2) The appropriate deputy head may provide, on request, to the appellant or to the appellant's representative a copy of any document referred to in subsection (1).

(3) Where the appropriate deputy head refuses to provide a copy of a document, the appellant or the appellant's representative may request that the appeal board order that a copy of the document be provided to the appellant or the appellant's representative.

These provisions generally outline the disclosure requirements for hearings before the Board but do not make any reference to the treatment of confidential materials.

     Counsel for the applicant referred to a number of cases dealing with confidentiality which he contends provide the basic legal principles for considering the treatment of confidential materials. These decisions primarily involve disclosure in the context of intellectual property cases and the Access to Information Act. Parliament has, in certain matters, legislated procedures with respect to the disclosure of confidential materials; for example, the Canada Evidence Act, R.S.C., 1985, c. C-5, subsection 39(1); Access to Information Act, R.S.C., 1985, c. A-1, subsection 35(1); Canadian Security and Intelligence Services Act, 1985, c. C-23, section 48; Immigration Act, R.S.C., 1985, c. I-2, section 40.1 and the Patent Act, R.S.C., 1985, c. P-4, subsection 20(4). Generally, Parliament does not enact legislative procedures and administrative tribunals and the Courts are responsible for determining the appropriate procedures for disclosure. In Hunter v Canada, [1991] 3 F.C. 186 (C.A.), at page 205, Decary J.A. commented:

When Parliament felt the need of the state was such as to exclude any form of challenge or as to restrict severely any access to the confidential information at issue, it did not hesitate to do so. When Parliament decided to impose a particular "technique" it did so. When Parliament decided that courts could choose the most appropriate "technique", it did so.

Accordingly, in this case, the procedure for disclosure of confidential materials is, subject to the Act and Regulations, for the Appeal Board to determine and it is the role of this Court, on judicial review, to determine if an error in law was made that justifies the intervention of this Court.

     The Appeal Board is charged with the responsibility of determining whether employees have been appointed according to the merit principle. Pratte J.A., in Charest v. A.G. (Canada), [1973] F.C. 1217 (C.A.), at page 1221, described the purpose of a section 21 appeal as follows:

... it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle.

While applicant's counsel describes the points in issue in a detailed manner, he submitted, during argument, that essentially the question before the Court involves reconciling the contents of the right to be heard versus the requirements of confidentiality. Stated somewhat differently, it is contended that the Appeal Board failed to apply the law in a manner which balances the conflicting rights and interests of the parties regarding disclosure and the right to be heard, particularly with respect to the manner in which the validity and reliability of the SIBE may be challenged.

     Two key cases dealing with the disclosure of confidential materials in Appeal Board hearings are Hasan v. Attorney General of Canada, [1996] F.C.J. No. 491 (QL), and Barton and Watkins, supra. In Hasan, the appellant was unrepresented and requested disclosure of all relevant material to himself personally. In that case, the Court was dealing with simulation tests and not an in-basket exercise. Simulation tests are the property of the Public Service Commission whereas the SIBE is a standardized test which is the property, in this case, of Revenue Canada. Counsel noted three main differences between simulation exercises and in-basket exercises: 1) simulations are scored by selection board members, whereas in-baskets are scored centrally only by third parties especially trained for this task; 2) simulation exercises do not have a fixed scoring grid but in-baskets do; and 3) simulations are scored on the basis of a combination of written and oral information, whereas in-baskets are scored only on written information.

     In Hasan, supra, the Department objected to allowing full disclosure of certain documents, arguing that such disclosure could only be provided to an appropriate representative of the appellant, in accordance with the usual procedures adopted by the Public Service Commission with respect to disclosure of standardized test material. In Hasan, at page 7, Richard J. determined that disclosure rights were dependent upon the interpretation of section 24 of the Regulations. In that case, the Court ordered disclosure of some of the documents.

     In Barton and Watkins, supra, Rothstein J., in dealing with the confidentiality of a SIBE, stated, at page 56, as follows:

In the proceedings before me there was no dispute between counsel as to the importance of maintaining confidentiality of the information at issue. There could be serious prejudice to the employer if the information sought was publicly disclosed because of the expense involved in the preparation and use of standardized tests. Indeed, counsel for the applicants stated that it was important to the applicants and to the Public Service Alliance of Canada that public servants be selected on the basis of merit and the efficacy and therefore the confidentiality of such tests is an important aspect of this objective.

It is also beyond question that the nature of the proceedings under section 21 are adversarial in nature despite the fact that the term "inquiry" is used in section 21 of the Act: Wiebe v. Canada, [1992] 2 F.C. 592 (C.A.), Barton and Watkins, supra, at page 57. In Barton and Watkins, Rothstein J. described the proceedings as follows, at page 57:

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.

     The allegations before the Appeal Board frame the basis for the confidentiality ruling made by the Board. There is a difference of opinion between counsel as to whether the allegations deal only with issues of validity and reliability of the SIBE or whether they also deal specifically with certain abilities of the candidates. My review of the record demonstrates that, while the allegations are primarily challenging the validity and the reliability of the SIBE, nevertheless, some specific references regarding abilities are also being challenged.

     The Department submitted, in its request for confidentiality, that, if the SIBE materials are not protected against public disclosure during a section 21 appeal, Revenue Canada would no longer be able to consider the test as a valid assessment instrument, thus, losing considerable time and money in its development. The Department also expressed the opinion that the replacement costs for the SIBE is estimated at $200,000; therefore, it contended that there is a public interest in safeguarding the confidentiality of the test.

     There is little doubt that, given the adversarial nature of the proceedings before the Appeal Board, the Board must make rulings on certain matters including objections related to confidentiality. It is a well established principle that a Board must be given sufficient latitude to establish its practice and procedure. Once the Board has determined that the documents are confidential, it must then determine if disclosure is required, what documents should be disclosed, and any terms associated with such disclosure, including appropriate safeguards. The terms as to disclosure involve a balancing, in this case, of two public interests; that of full disclosure so that the appellants and intervenors can fully participate in the hearing and that of preserving the confidentiality of the information so as to avoid diminishing its utility in future testing situations.

     Did the Appeal Board consider and balance the relative public interests at stake and apply them in a manner which does not violate any principles of law? In part, this depends on the functions of the Board and its special expertise in determining whether the selections were made according to merit. A proper balancing with respect to disclosure recognizes the impact on individual rights and the Department's interest in safeguarding the information contained in the SIBE. In Wiebe v. Canada, supra, at page 595, Hugessen J.A. stated as follows:

Clearly, administrative tribunals are not always held to follow the same rules as courts. The requirements for any particular tribunal will depend upon the nature of the inquiry being conducted and whether and to what extent the procedure may properly be seen as adversarial. In the case of the Appeal Boards appointed under section 21 of the Public Service Employment Act generally, and more specifically in the particular circumstances of this case, it is my view that the Board should have approached its discretion in the same way as would a court.

Proceedings under section 21, though styled an "inquiry", are very much adversarial 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...

Often there will be one or more other interested parties as well, notably successful candidates or persons whose names have been placed on the eligible list. They are entitled as of right to participate [Schwartz v. The Queen, [1982] 1 F.C. 386], and if they choose to give evidence they must submit themselves to cross-examination [Sorobey v. Canada (C.A.C.F.P.), [1987] 1 F.C. 219.]. The circumstances being so similar to those of a trial, the Appeal Board should be governed by the same considerations when considering the exclusion of witnesses.

     The Appeal Board made a deliberate procedural choice with respect to the disclosure of the SIBE documents. In my opinion, and based on the authorities which I have considered above, the Appeal Board did not err in deciding that the appellants clearly had a right to be present at their own appeal. Nor did the Board err in deciding that the selected candidates also had a right to be present in this appeal. It is clear that the Appeal Board correctly noted that the appeal is quasi-judicial in nature, and as such the rules of natural justice apply: Blagdon v. Public Service Commission, [1976] 1 F.C. 615 (C.A.). The Appeal Board did consider the public interest issues, including the cost of developing the test and the need to prevent undue access to the confidential parts of this test as this would compromise its continued use. At page 34 of the decision, the Appeal Board noted as follows:

The exercise should not be immune from challenge, but it deserves to be shielded from unnecessary disclosure.

I agree with the respondents' counsel that the Appeal Board imposed a number of procedural safeguards with the objective of protecting the confidentiality of the SIBE while, at the same time, preserving the respondents' and intervenors' rights to a full hearing. In the absence of an error of law or the application of a wrong principle, the terms associated with disclosure are matters for the Board to determine.

     The applicant contended, by reference to a number of cases, that the courts have treated confidentiality in a manner consistent with his position in this matter. I disagree, however, with the contention that these cases should of necessity require the Board to adopt those procedures. The terms of a confidentiality order are case specific and dependent upon the issues and legal regime being considered by the decision-maker. As such, my review of those orders and decisions referred to by the applicant does not persuade me that the Appeal Board erred in law or in principle.

     Counsel for the applicant argued that the Appeal Board imposed safeguards that are unenforceable. While applicant's counsel may be correct, that does not mean that an error of law has been committed. The absence of powers to enforce the terms regarding disclosure is a matter for the executive and legislative branches of government and is not a reason that justifies setting aside the ruling of the Board.

     In conclusion, I am of the opinion that the Appeal Board made no error in law with respect to the manner in which it handled the confidentiality requests associated with the SIBE. I disagree with the applicant's contention that the Appeal Board decided that the right to be heard is absolute. A review of the decision in its entirety demonstrates that the Board clearly grasped the competing interests at issue. It restricted access to the confidential documents in a manner which allowed for a meaningful opportunity to participate but at the same time recognized the need to preserve, as much as possible, the confidentiality of the information. Accordingly, the application shall be dismissed.

     Counsel for the applicant also sought leave to amend the originating notice of motion in order to correct the relief requested. This application shall be allowed.

     The parties jointly requested a stay of my order to give "either party the opportunity to appeal the order." During argument, applicant's counsel indicated that his intention would be to seek, if necessary, the joinder of this case with Hasan, supra, in the Court of Appeal. The parties have thirty days to consider an appeal of this decision. Therefore, I shall not grant the request for a stay at this time.

                                 Wetston J.

                    

                                 J.F.C.C.

Ottawa, Ontario

October 9, 1996