Date: 20080826
Docket: T-1399-07
2008 FC 963
Ottawa, Ontario, August 26, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ANDREW
TULK
Applicant
and
THE ATTORNEY GENERAL OF CANADA
and JOSEPH FARRAH
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Is
it reasonable that there is only one answer marked as correct to a question
asked in a selection competition when two of the proposed answers mean the
exact same thing?
BACKGROUND
[2]
This
application for judicial review concerns a decision rendered on June 7, 2007,
by an appeal board established by the Public Service Commission under section
21 of the Public Service Employment Act, R.S.C., 1985, c. P-33 (now
repealed by the Public Service Modernization Act, S.C., 2003, c. 22,
section 284).
[3]
A
competition was held to staff the position of Production Superintendent with
the Department of National Defence, Gagetown, New
Brunswick.
Following the assessment process an eligibility list was created ranking six
qualified candidates. An appeal from that selection process was allowed on May
24, 2006, by decision of the Appeal Board. On August 10, 2006, the Public Service
Commission prescribed corrective measures to address the defects identified by
the Appeal Board. The corrective measures required DND to reassess the candidates
on the following factors:
·
National Building Code
·
Health
and Safety
·
Civilian
Performance Management Review
·
Ability
to interpret and apply data from blueprints and specifications
·
Ability
to apply collective agreements
·
Ability
to manage financial resources
[4]
These
factors were reassessed by way of a written examination. On December 13, 2006,
a new eligibility list was issued with Mr. Joseph Farrah, the personal Respondent,
ranking first and Mr. Andrew Tulk, the Applicant, ranking second. Mr. Tulk appealed
the appointment of Mr. Farrah to the Appeal Board on a number of grounds, all
of which were dismissed in its decision rendered June 7, 2007.
[5]
Mr.
Tulk is seeking judicial review of the decision of the Appeal Board with
respect to only one of the issues raised by him at the Appeal Board. He
submits that the decision of the selection board for the competition was
unreasonable in that it failed to award him a point for his answer to a
knowledge question dealing with familiarity with DND workplace health and
safety standards and procedures, despite the fact that his answer was correct.
[6]
The
selection board scored Mr. Tulk only 0.11 of a point behind the successful
candidate. Had his response to the question at issue been scored as correct,
he would have been awarded an additional point and thus would have been the
successful candidate in the competition.
[7]
The
question at issue is Question 4, under Knowledge 2 “Health and Safety” which
reads as follows:
Under the
Canada Labour Code Part II, 124 states under the “Duties of the Employers"
that; Select (1) correct answer.
A. Every
employer should ensure the health and safety at work of every person employed
by the employer is protected.
B. Every
employer must ensure the health and safety at work of every person employed by
the employer is protected.
C. Every employer
shall ensure the health and safety at work of every person employed by the
employer is protected.
Mr. Tulk answered B. The expected and thus
correct answer from the standpoint of DND was C. The difference between the
responses is the difference, if any, between the words ‘must’ and ‘shall’. The
selection board only accepted the answer containing the word ‘shall’ as the
correct response because that is the precise wording of section 124 of the
Canada Labour Code. The Appeal Board’s findings as regards this question were as
follows:
In question 4, Mr. Doherty
[counsel for the Applicant] asserted that “shall” and “must” have the same
meaning. After examining the issue put before me in greater depth, I came to
the same conclusion. However, the department relied on the terminology used in
the CLC [Canada Labour Code] and accepted “shall” as the correct answer. In
applying the criteria expressed in Scarrizzi (supra), I cannot say that
the opinion formed by the Selection Board is unreasonable to the point that no
reasonable person would have formed the same opinion.
[8]
As
the Appeal Board noted, section 124 of the Canada Labour Code reads as
follows: “every employer shall ensure the health and safety at work of every
person employed by the employer is protected” - the wording of answer C.
ISSUE
[9]
Mr.
Tulk raises as the issue in this application whether the decision of the Appeal
Board was unreasonable, in that it failed to intervene with respect to the
selection board’s refusal to accept the Applicant’s response to Question 4 as a
correct answer, even though it has the same meaning as answer C, the answer
designated by the selection board as the correct response.
ANALYSIS
[10]
Both
parties to this application for review submit, and I agree, that the standard
of review of the decision of the Appeal Board raised in this application is
that of reasonableness, as defined by the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 9.
[11]
The
Appeal Board, when it is reviewing a decision of a selection board, must do so
by applying the standard set out by the Federal Court of Appeal in Attorney
General of Canada v. Appeal Board established by the Public Service Commission,
[1982] 1 F.C. 803. There the Court of Appeal appears to have imported the
“patently unreasonable” standard as the standard in such a review, while at the
same time indicating that the prime purpose of an appeal board established
under the legislation was to ensure that the merit principle was followed in
the selection process:
The
function of an Appeal Board appointed pursuant to section 21 of the Public
Service Employment Act, R.S.C. 1970, c. P-32, is to determine, after inquiry,
whether the selection made in the instant case was a "selection according
to merit" pursuant to section 10 of that Act. The Appeal Board has a right
and duty to satisfy itself that the opinion required by subparagraph 5(c)(i) of
the Regulations, supra, was in fact formed but it cannot review the reasonableness
of the opinion so long as there was some basis for it. The opinion formed would
have to be so unreasonable that no reasonable person could form that opinion.
The Appeal Board is not entitled to substitute its opinion for that of the
Department exercising the delegated authority to form that opinion. The
question whether there has been the required opinion formed is relevant to the
application of the merit principle, but as to the reasonableness of such
opinion, an Appeal Board should be bound by the same limits as a court
exercising judicial review or sitting on a statutory appeal.
[12]
The
Appeal Board in this case found, as a fact, that the word ‘must’ and the word ‘shall’
as used in the two possible answers to Question 4 had the same meaning. The
Appeal Board does not indicate on what basis it reached that conclusion;
however, the evidence submitted by the Applicant in this respect must have been
found to have been persuasive. A significant part of that evidence came from
documents authored by the Respondent. In materials prepared and used by DND in
its ‘Safety Legislation Course’ – which materials were listed as a reference
for some of the knowledge questions, but not for Question 4 which gave as its
reference the “Canada Labour Code Part II, 124” - the Respondent wrote this:
SHALL & IS
108. The use of “shall” and “is” denotes
mandatory duties (it means “must”). For example, section 125(q) reads,
in part;
“an employer shall provide … each
employee with the information, instruction, training and supervision necessary
to ensure the health and safety at work”.
109. This means that the employer
must provide the information, instruction, training and supervision to
ensure the Health and Safety of their workers. Employers don’t have a choice.
(emphasis added)
[13]
The
Applicant submits that having found that the two answers, B and C, mean the
same thing, it is unreasonable, and is in fact perverse, to accept only one of
those answers as correct, rather than accepting both. The Respondent submits
that the question asked the candidate what section 124 “states” and that it is
reasonable to accept as the correct response that which mirrored the
wording of section 124. The Applicant concedes that the “expected” response,
answer C, was a reasonable response, but argues that it is equally reasonable
to accept the other response, answer B, which has an identical meaning.
[14]
In
my view the Appeal Board erred in its analysis and reached an unreasonable
decision which cannot stand. In my view, if the Appeal Board had engaged in
the correct analysis it would have found that the decision of the selection
board was one that no reasonable person could hold.
[15]
The
Appeal Board is required to conduct its examination of the selection process
from the premise that “the essential question for the Appeal Board is whether
the selection of the successful candidate has been made in accordance with the
merit principle”: Blagdon v. Canada (Public Service Commission, Appeals
Board), [1976] 1 F.C. 615 at para 6 (F.C.A.). With this principle in mind,
the Appeal Board, prior to engaging in its examination of the reasonableness of
there being only one correct, expected response to Question 4, ought to have
considered what the purpose of that question was from the standpoint of the
merit principle. In short, what was the question attempting to measure?
[16]
The
Respondent agreed that the purpose of Question 4 was not to ascertain whether
the candidate had memorized and could recite the wording of section 124 of the
Canada Labour Code. Clearly if this was the purpose of the question then there
was only one correct and acceptable response, answer C. Rather, as was
conceded by the Respondent, the purpose of Question 4 was to determine whether
the candidate had knowledge of the mandatory nature of the employer’s
obligations set out in section 124 of the Canada Labour Code. That is to say,
the purpose of the question was not to test a candidate’s knowledge of the
precise wording of the section, but its import. Had the question been directed
to the exact wording of the section, it would have more exactly asked what
section 124 “reads”, or similar wording, rather than using the word “states”.
More importantly, if the question was directed to ascertaining whether a
candidate could recite the precise words of a statute, it may well have been
objected to on the basis that it was not part of the knowledge required for
this position to be able to recite the Canada Labour Code, or parts of it.
[17]
Once
the purpose in asking the question is understood, the Appeal Board can then go
on to examine the reasonableness of the position of the selection board that
there was only one correct answer to the question using the test set out by the
Federal Court of Appeal in Attorney General of Canada v. Appeal Board
established by the Public Service Commission, supra.
[18]
Having
found that two of the answers meant exactly the same thing - both stated
exactly what section 124 of the Canada Labour Code mandates - the Appeal Board
was then required to ask whether any reasonable person would accept only one of
those answers as being correct. In my view, the answer to that question is
obvious – and it is no.
[19]
Put
in a mathematical context, it is like asking whether any reasonable person
would accept only C as the correct response to the following:
What does 2+2
equal? Select (1) correct answer:
A. 3+0
B. 3+1
C. 4+0
[20]
Because
the Appeal Board failed to consider the true purpose, having regard to the
merit principle, of Question 4, its decision that a reasonable person could
accept that only one answer to the question was correct was itself
unreasonable, and cannot stand. It must be set aside.
[21]
The
parties agreed that the successful party would be awarded costs fixed at $200.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is allowed, the decision of the Appeal Board
dated June 7, 2007 is quashed, and the Mr. Tulk’s appeal from the decision of
the selection board is remitted back to the Appeal Board to render a decision
in accordance with these Reasons; and
2.
The
Applicant shall have his costs of this application, fixed at $200, plus GST.
“Russel W. Zinn”
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