Date: 20071214
Docket: T-271-07
Citation: 2007 FC 1308
BETWEEN:
KHAJA
VICARUDDIN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision of the Appeal Board of the
Public Service Commission of Canada (the “Board”), in which it dismissed the
applicant’s appeal against the appointment of Alan Capstick to the position of
Regional Director, Real Property, Accommodation and Portfolio Management in the
Edmonton region of Public Works and Government Services Canada (the “position”).
* * * * * * *
*
[2]
The
position was advertised in fall 2005, with a closing date of December 16, 2005.
Although the Selection Profile, an internal document, indicated that the
language requirement was Bilingual Non-imperative CBC/CBC, the position was
advertised as English Essential. Thirteen candidates applied, of whom six were
interviewed in February 2006. Of the six interviewees, only one, Mr. Capstick,
passed the knowledge portion. The results of the interviews were released on
May 19, 2006, and Mr. Capstick was sent a conditional letter of offer.
[3]
The
applicant launched his appeal with the Board on June 22, 2006, and made several
allegations with regard to the selection process. Of those allegations, two are
relevant to this application for judicial review. The applicant argued that the
successful candidate had been appointed without being assessed for ability in
French, contrary to the Selection Profile. Furthermore, the applicant argued that
Mr. Capstick had received an unfair advantage, because he had received a number
of acting appointments prior to his appointment to the position.
[4]
In
its response to the linguistic profile allegation, the respondent sought to
introduce a Note to File which had been prepared after completion of the
selection process, on May 3, 2006, and which indicated that an error in the
Selection Profile with regard to the linguistic profile had been rectified. The
applicant objected to the admissibility of this evidence because it was not
disclosed before the hearing and there was no one available who could be
cross-examined on it. The respondent also provided the testimony of Heather
Peden, the Regional Director General of the Western Region, who stated that the
position, which was under her authority, had always been English Essential.
[5]
The
Board held its hearing on October 26, 2006, and released its decision on
January 2, 2007. The applicant filed his application for judicial review on
February 9, 2007.
* * * * * * *
*
[6]
The
Board dismissed the applicant’s appeal in its entirety. With regard to the
linguistic profile of the position, the Board made the following comments:
. . . the responsible manager for the
position, Ms. Peden, was present, examined and cross-examined throughly [sic]
on the point of the English essential linguistic profile of the position. This
was reflected on both the Statement of Qualifications and the competition
poster. Ms. Peden credibly and forthrightly presented her evidence that the
position was English essential. She bore no responsibility for drafting the
internal document of the Public Service Commission which has now been
corrected. The document is informal in appearance and bears no date or
signature. In any event, the internal document was not communicated to the
candidates, none of whom could have been influenced by it. I find, therefore,
that the assessment of candidates was not tainted in the matter of language
assessment. The position was assessed with the correct linguistic profile. The
error occurred in the Public Service Commission’s administrative documents. I
take note of Ms. Preto’s [counsel for the applicant] objection that no person
was available at the time of the hearing to be examined on the note to file.
However, given Ms. Chartrand’s [counsel for the respondent] explanation of the
origin of the note to file, I accept that it is a business record made by a
person under a duty to make it and that it was made in a timely way. This
tribunal regularly receives and accepts hearsay evidence and to the extent it
is required, I accept this document as a further exception to the hearsay rule.
[7]
On
the issue of unfair advantage, the Board stated the following:
. . . Mr. Capstick doubtless brought to
this selection process whatever benefit he derived from the “luck or
happenstance” that befell him when he received his past temporary assignments.
I find nothing in the record before me to show that the selection tools were
crafted expressly to address Mr. Capstick’s experience and the appellant has
not persuaded me that the knowledge and experience gained could not have been
addressed by diligent preparation for this selection process. There has been no
suggestion that preparatory study materials were unavailable or inadequate. The
appellant’s case for unfair advantage rests on what was termed as Mr.
Capstick’s “significant and exclusive access to” and participation in “the ‘inner
circle’ of executives in the region” in the absence of documentation of formal
selection processes. I do not find this line of reasoning persuasive. It has
not been shown that the structure of the assessment was ill-suited to the
position or that it was tailored to Mr. Capstick and his experience in his
previous assignments. Doré [v. Canada, [1987] 2 S.C.R. 503 at 511],
Pearce [88-21-PSC-2; upheld on application for judicial review to the
Federal Court of Appeal Attorney General of Canada v. Pearce, [1989] 3 F.C. 272], and Stelmaschuk
[1989 ABD [10-1], page 65 at 68] each acknowledge that temporary assignments
are viable means of staffing in the public service. Mere acceptance of a
temporary assignment and discharge of the duties of the position cannot
disentitle an individual from later competing for that position or a similar
one. It is my view that substantially more than the fact of receiving these
assignments is required to ground the allegation of unfair advantage.
* * * * * * *
*
[8]
Section
21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, allows
for appeals of appointments and 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.
|
21. (1) Dans le cas d’une nomination,
effective ou imminente, consécutive à un concours interne, tout candidat non
reçu peut, dans le délai fixé par règlement de la Commission, en appeler de
la nomination devant un comité chargé par elle de faire une enquête, au cours
de laquelle l’appelant et l’administrateur général en cause, ou leurs
représentants, ont l’occasion de se faire entendre.
|
[9]
These
appeals are governed by the Public Service Employment Regulations, 2000,
SOR/2000-80, the following provisions of which are relevant to this appeal:
|
25.
(3) Subject to subsection (8) and (9), full disclosure shall be completed
within 45 days after the date of the letter, referred to in paragraph 23(b),
that acknowledges the receipt of the written document bringing the appeal.
[…]
26.
(1) An appellant shall be provided access, on request, to any information, or
any document that contains information, that pertains to the appellant or to
the successful candidate and that may be presented before the appeal board.
|
25. (3) Sous réserve des
paragraphes (8) et (9), la divulgation complète doit être réalisée dans les
quarante-cinq jours suivant la date de l’accusé de réception du document
écrit visé au paragraphe 21(1).
[…]
26. (1) L’appelant a accès sur
demande à l’information, notamment tout document le concernant ou concernant
le candidat reçu et qui est susceptible d’être communiqué au comité d’appel.
|
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[10]
This
matter raises the following issues:
(1) What is the appropriate
standard of review of the Board’s decision?
(2) Did the Board fail to carry
out its duty of fairness when it accepted the Note to File as evidence?
(3) Did the Board commit a
reviewable error when it concluded that Mr. Capstick had not received an unfair
advantage in the selection process?
* * * * * * * *
Appropriate
standard of review
[11]
The
parties agree that, based on the decision of the Federal Court of Appeal in Davies
v. Canada (Attorney General) et al. (2005), 330 N.R. 283, the appropriate
standard of review of the Board, as a result of a pragmatic and functional
analysis of the Board’s decision is: (1) correctness for questions of law; (2)
reasonableness on questions relating to the selection process and other
questions of mixed fact and law; and (3) patent unreasonableness on questions
of fact.
[12]
In
the case at bar, the parties therefore agree that on the issue of the alleged
breach of procedural fairness, the applicable standard of review is that of
correctness, and on the issue of the “unfair advantage”, it is patent
unreasonableness, given that it involves a finding of fact by the Board.
Breach of procedural
fairness
[13]
The
applicant argues that the Note to File correcting the internal administrative
document concerning the position’s linguistic requirements was inadmissible
and, therefore, should not have been allowed into evidence. The applicant further
alleges that, once the Note was admitted into evidence, he was denied
procedural fairness because of the Board’s refusal to allow him to
cross-examine the author of the Note.
[14]
With
respect to the Note to File’s admissibility, the decision to allow the Note
into evidence is a discretionary one to which deference is owed (see, for
example, Chou v. Canada (Attorney General), 2006 FC
184, [2006] F.C.J. No. 229 (T.D.) (QL)). The Board’s reasons indicate that the
extent to which it relied on the Note was minimal, if at all. Specifically, the
Board accepted the evidence of Heather Peden, the responsible manager for the
position, that the Note to File was an administrative document of the Public
Service Commission for which she had no responsibility for drafting. Ms. Peden
stated that the Note was not communicated to the candidates so none of them
could have been influenced by it. The Board noted that Ms. Peden was examined
and cross-examined thoroughly on the point of the English Essential linguistic
profile of the position. As the representative of the department which has
exclusive responsibility for establishing the necessary qualifications for a
position, Ms. Peden was the appropriate person to testify to the position’s
linguistic requirements. The Board found that Ms. Peden credibly and
forthrightly testified that the position was always English Essential. This was
communicated to potential candidates through both the Statement of
Qualifications and the competition poster. Finally, the fact that the internal
administrative document concerning the position’s linguistic requirements was
eventually corrected within the Public Service Commission is of no relevance to
the competition. In this whole context, I do not see any breach of fairness
which warrants the intervention of this Court.
“Unfair advantage”
[15]
The
applicant submits that, due to his holding of a number of temporary
appointments, including executive positions within the group the position was
in, Mr. Capstick received an unfair advantage in the selection process.
The respondent submits that the Board did not err in its determination that Mr.
Capstick had not received an unfair advantage.
[16]
Indeed,
the purpose of the selection process is to ensure that appointments are made on
the basis of the merit principle, which requires not only that the successful
candidate be qualified for the job, but also that he or she be the most
qualified candidate (McAuliffe
v. Canada (Attorney General)
(1997), 128 F.T.R. 39). The merit principle can be violated if the
successful candidate had an unfair advantage in the selection process. For
example, the appointment of a candidate who has already occupied the position
for some time can pose “a severe threat to the merit principle” (Berger et al. v. Canada (Attorney General) et al. (2004), 249 F.T.R. 93 at para. 39). In Canada
(Attorney General) v. Pearce, supra, Justice Mahoney, for the
Federal Court of Appeal, wrote at page 280 that the merit principle was not
only offended by giving an assignment that was so lengthy that it amounted to
an appointment: “It seems to me that other circumstances taken together with an
assignment may equally offend the merit principle.” Similarly, “[f]amiliarity
with the actual duties of a position may provide the candidates in place with
an unfair advantage with the risk that a selection process may not result in a
selection according to merit” (McAuliffe, supra, at page 44).
[17]
In
this case, the applicant challenges the interview portion of the selection
process, arguing that the way the knowledge questions were framed gave Mr.
Capstick “a marked advantage resulting from his experience.” The Board found
that this was not the case, as there was nothing to demonstrate that diligent
preparation could not address the knowledge and experience gained by Mr.
Capstick, nor that “the structure of the assessment was ill-suited to the
position or that it was tailored to Mr. Capstick and his experience in his
previous assignments.” In my opinion, based on the evidence, not only has the
applicant failed to demonstrate that the Board’s decision on this issue was patently
unreasonable, but I find the Board’s finding perfectly reasonable.
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[18]
For
all the above reasons, this application for judicial review is dismissed, with
costs.
“Yvon
Pinard”
Ottawa,
Ontario
December
14, 2007
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