Date:
20121219
Docket:
T-208-12
Citation:
2012 FC 1508
Ottawa, Ontario, December 19, 2012
PRESENT: The Honourable Mr.
Justice Phelan
BETWEEN:
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ANGELA MITCHELL
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Applicant
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and
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CANADA REVENUE AGENCY
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an application for judicial review of a decision by a Decision Reviewer
[Reviewer] at Canada Revenue Agency [CRA] in which the Reviewer denied the
Applicant’s challenge to a selection process decision which the Applicant had
claimed was arbitrary.
II. BACKGROUND
[2]
The
Applicant applied for the position of a Team Leader, GST/HST Program, in CRA.
The competition for this position required a simulation exercise to assess
Effective Interpersonal Relationships [EIR]. The EIR simulation used a
three-page fact pattern and was evaluated by two Assessors. A passing score was
70% and since the EIR was marked out of 50, 35 was the passing mark.
[3]
The
Assessors used a Marking Key and a Scoring Key. The Marking Key asked the
Assessors specific questions: for example, “did the candidate recognize the
need for team building?”; “did the candidate develop and maintain his/her
relationship and communication with others, i.e. Gavin, the section manager …
.” The Scoring Key set forth the criteria to be used in judging the overall
quality of each answer.
While points are not being assigned to specific
criteria, the criteria below will be considered in judging the overall quality
of each answer:
- Recognizing people aspects/positive
relationships;
- Establishing and
maintaining good and productive relations with subordinates[s], peers,
supervisors;
- Producing good results through interactions
with others;
- Being sensitive and responsive, yet firm when
called for;
- Tactfully dealing with difficult or
challenging personalities.
[4]
The
notes on the Applicant’s Scoring Key contained comments on her strengths and
weaknesses in responding to the simulation exercise questions. The Applicant
was rated 25/50 and was removed from the competition as a result.
[5]
The
Applicant exercised her right to first level recourse – a Request for
Individual Feedback. This recourse is available only on the grounds that the
decision was “arbitrary”. Arbitrariness is defined as:
“In an unreasonable manner, done capriciously; not
done or acting according to reason or judgment; not based on rationale or
established policy; not the result of a reasoning applied to relevant
considerations; discriminatory, i.e., as listed as the prohibited grounds of
discrimination in the Canadian Human Rights Act.”
The 1st
level decision concluded that the Applicant was not subject to arbitrary
treatment.
[6]
The
Applicant then exercised her right to second level recourse – Decision Review.
That decision is the subject of this judicial review. That decision by a
Reviewer addresses the complaint of arbitrary treatment by the Assessors. The
Reviewer acknowledged the nature of the Applicant’s complaint; that the
Applicant could not determine how she did under each specific item, question or
criteria. The Reviewer’s explanation given to the Applicant at a personal
meeting was that the assessments were conducted in a holistic manner and
assessed globally.
[7]
In
the Decision, the Reviewer confirms that he met with the Board Members to
review the areas of concern.
[8]
Ultimately
the Reviewer concluded that the methodology and assessment tools used for this
process and the assessment itself were appropriate. The Reviewer concluded that
the Applicant had not been subjected to arbitrary treatment.
[9]
The
Applicant’s challenge to the Reviewer’s decision is based on the failure to
follow CRA Staffing
Program, Guidelines on Assessment Methods (undated), the
failure to specifically address each question in the Marking Key and each
criteria in the Scoring Key and not act in accordance with staffing principles.
The real complaint is that the Applicant wanted to be able to match up each
item in the Marking Key and the Scoring Key with a comment or rating whereas
the comments by the Assessors merged issues or combined issues and took a more
global approach to assessing the skills being assessed.
III. ANALYSIS
[10]
The
standard of review for this type of decision was established in Wloch v Canada (Revenue Agency), 2010 FC 743 at paragraph 21, and was determined to be reasonableness.
The parties accepted that this was the applicable standard of review.
[11]
There
was a preliminary issue as to the admissibility of the Applicant’s notes of
what transpired through the levels of review. While these notes were not before
the Reviewer, they purport to address the contention that the Reviewer did not
address all of the Applicant’s allegations.
[12]
It
is my conclusion that the evidence is admissible because part of the
Applicant’s position is that she was unfairly treated and that there were
failures/omissions by the Reviewer. This type of allegation, much like a claim
of breach of natural justice, often cannot be made out on the basis of the
tribunal record. In fact, the absence of some action or the omission of some
important evidence arises because the tribunal record does not disclose the
very matter at issue. It is interesting in terms of fairness that the notes of
a CRA observer were included in the record before this Court. On the basis of
relevancy and fairness, what is “sauce for the goose is sauce for the gander”,
the application to strike portions of the Applicant’s record is denied.
[13]
However,
in the end, this favourable ruling does not result in a successful judicial
review.
[14]
In
terms of process, the Reviewer considered the internal policies of CRA and
understood the development and use of the EIR simulation. A review of the
comments by the Assessors shows a sufficient correlation between those comments
and the questions and criteria being used. It is clear on what basis the Assessors
came to their conclusion.
[15]
The
Applicant is not entitled to a specific format being used for assessment. There
is no requirement that for each question, there be a corresponding comment.
This is not an exercise which requires the type of matrix format claimed by the
Applicant.
[16]
As
the Court of Appeal observed in McGregor v Canada (Attorney General),
2007 FCA 197, at paragraphs 51 and 52, the process of assessment of the skills
and traits for promotion is not a mathematical function. It is largely a matter
of opinion.
51 However, the abilities and personal suitability
characteristics required for the positions being staffed included such things
as the ability to manage a multi-disciplinary human resources team, the ability
to establish effective partnerships and working relationships with key
stakeholders, the ability to effectively communicate orally and in writing, and
behavioural flexibility. To require the Selection Board to explain in minute
detail the considerations that played into the selection of a rating for a
particular ability or personal suitability characteristic would add a level of
artificiality to the process. As Justice Pratte stated in Blagdon at
page 623,
The mere fact that an Appeal Board could, had it sat
as a Selection Board, have reached a conclusion different from that reached by
the Selection Board is not a sufficient ground for allowing the appeal. It
must be realized that the assessment of the merit of various persons, which is
the function of the Selection Board, cannot be reduced to a mathematical
function; it is, in many instances, a pure matter of opinion. And,
there is no reason why the opinion of an Appeal Board should be preferred to
that of a Selection Board.
[Emphasis added.]
52 In my opinion, the Appeal Board applied these
principles appropriately when rejecting Mr. McGregor’s argument, as set out at
paragraph 43 of its decision:
It was not necessary for the selection board to
justify how many marks could be attributed to each of the selection tools used
to assess a particular qualification. The whole point of a global assessment is
to allow the selection board to consider all of the information supplied by the
candidate. As noted above, assessment cannot be reduced to a mathematical
function.
[17]
In
another unrelated selection type decision submitted by the Applicant, an
independent third party reviewing that selection decision concluded that there
is a flaw in the use of global assessments. The Applicant’s reliance on those
comments to establish that the same flaws were evident in her case is
unsupportable. Not only are independent third party reviews not precedent
setting, they are case-specific. They are proof only of the opinion of that
third party; absent a proper evidentiary base and cross-examination thereon,
the comment is of little assistance.
[18]
In
the case before this Court, the Reviewer had all the relevant material,
investigated the process, spoke to the necessary people and reached a
conclusion which was reasonably open to him.
IV. CONCLUSION
[19]
For
these reasons, this judicial review will be dismissed without costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed without costs.
“Michael L. Phelan”
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