Date: 20081128
Docket: T-641-07
Citation:
2008 FC 1295
Ottawa, Ontario, the 28th day of November
2008
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
MICHEL
EAST
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary Comments
[1]
It
was impossible for the Appeal Board to determine the right period to make the
risk of a leak acceptable. It is not necessary to have objective evidence
demonstrating that the accommodations recommended by the Appeal Board would not
have negatively affected the other candidates in the competition. As the
selection process did not proceed in this manner, it is impossible to say with
certainty what effect the use of an alternative assessment method would have
had on the other candidates. Requiring the Correctional Service of Canada (CSC)
to produce such evidence would place it in an untenable position: “In order to
justify the decision to depart from the recommendations of an outside expert, a
government department only needs to demonstrate that there were legitimate
concerns that a problem would have arisen if the process had moved forward” (Tremblay v.
Canada (Attorney General), 2003 FCT 466, 232 F.T.R. 138 (T.D.),
at paragraph 35). Accordingly, the determination that there would be less
risk of a leak after a week but more after two or three weeks seems to fall
within a selection board’s discretion and expertise. The Appeal Board erred in
substituting its opinion for what seems to have been a reasonable precaution to
protect the merit principle in the selection process.
[2]
In
its decision, the Appeal Board applied the tests laid down in Girouard v.
Canada (Attorney General), 2002 FCA 224, [2002] F.C.J.
No. 816 (QL). However, the Appeal Board disputed the Selection Board’s
reasoning when it concluded that an information leak was no justification for
the failure to accommodate the appellant more generously. It is nonetheless the
opinion of this Court that the Appeal Board erred in law by disregarding the
fact that even the method of accommodation is subject to the merit principle.
It is an appeal board’s task to determine whether the accommodations provided
allowed a candidate to compete on an equal footing with the other candidates (Tremblay,
above, at paragraph 25). The duty of an appeal board is not to reassess
candidates to protect an appellant’s rights but rather to conduct an inquiry to
determine whether the selection has been made in a way consistent with the
merit principle (Charest v. Canada (Attorney General), [1973] F.C.
1217 (F.C.A.), [1973] F.C.J. No. 150 (QL), at paragraph 12; Blagdon v.
Canada (Public Service Commission, Appeals Board), [1976] 1 F.C. 615,
[1975] F.C.J. No. 162 (QL), at paragraph 21; Girouard,
above, at paragraph 12). The
selection of successful candidates therefore had to respect the merit
principle, regardless of individual results (McGregor v. Canada (Attorney General), 2007 FCA 197, 366 N.R. 206, above, at
paragraph 48).
II. Judicial Proceedings
[3]
This is an application for judicial review of a decision dated
March 5, 2007 by Line Chandonnet of the Appeal Board
of the Investigations Branch of the Public Service Commission (Commission)
allowing the appeal of the respondent, Michel East, under section 21
of the Public Service Employment Act, R.S.C. 1985, c. P‑33
[repealed 2003, c. 22, s. 284] (PSEA) (the new PSEA came into force
on December 31, 2005).
III. Facts
[4]
On
November 10, 2004, the CSC
issued a competition poster for 60 CX‑03 correctional supervisor
positions. There were 12 competition numbers, one for each institution in
the Quebec region.
[5]
Under
the heading “Qualifications and Screening Criteria” and the subheading “Experience”,
the competition poster stated that candidates had to have the following
experience: “Extensive experience in the application of a range of correctional
operations duties including escorts and inmate case management”.
[6]
By
the application deadline, November 24, 2004, 191 candidates had
submitted an application specifying the competition number or numbers for which
they wished to apply.
[7]
The
applications were assessed through a process conducted by the Screening Board
and the Selection Board, whose members, Serge Trouillard,
Manon Bisson and André Courtemanche, had several years of experience
with the CSC.
[8]
On
December 8, 2004, the
Screening Board elaborated on the qualifications set out in the competition
poster as follows:
[translation]
It has been agreed that each
candidate will have to clearly and specifically demonstrate that he or she has
the following experience:
Five years’ experience in
the application of a range of correctional operations duties in the CSC and/or
a provincial or territorial correctional service and/or a community residential
centre. As well, within that five‑year period, two years of
experience in a CX‑02 and/or PW and/or PO position. (Acting assignments,
indeterminate appointments and probationary periods will be considered.)
[9]
After
providing this clarification about the qualifications, the Screening Board
screened out 35 applications, 17 because the candidates did not meet the
qualifications requirement in the competition poster and 18 because the
candidates had not clearly demonstrated that they had those qualifications. On
December 23, 2004, the candidates who were unsuccessful at that stage
were notified of that fact. The applicant sent the candidates who had been
screened in a copy of the Statement of Qualifications and a list of the basic
study documents for the Knowledge test. An amended list of the study documents
was sent to the candidates on January 10, 2005.
[10]
On
February 17, 2005, the candidates received a letter inviting them to sit
the 90‑minute Knowledge test scheduled for the morning of
March 14, 2005. The letter stated that, if they were unable to attend
the test, they should contact Bernadette Gariépy, Human Resources Advisor
for the CSC, by telephone. The same letter set out the procedure for
withdrawing from the competition: [translation]
“If you decide not to attend, please inform us of your withdrawal in writing.”
[11]
In
a letter dated March 10, 2005, Mr. East noted
that he was facing several difficult situations:
[translation]
Ms. Gariépy, I herewith register a
protest concerning the following CX‑03 competitions. . . .
In fact, I am currently awaiting an adjudication hearing, following unjustified
disciplinary action. I was also subjected to a criminal investigation that
concluded with “No criminal prosecution will be launched against you.” Then,
finally, on October 4, 2004, I was impleaded on a frivolous and bad
faith harassment complaint; my evidence was irrefutable but, once again, the
laxness of CSC managers has resulted in a sword of Damocles over my head.
[12]
He
therefore requested for the first time that the competition be deferred:
[translation]
. . . I find myself obliged to request
that the above competitions be suspended until such time as I am exonerated
and/or found guilty of the actions of which I am baselessly accused. Moreover,
with the concerted action being conducted against me by certain managers, I am
not really able to concentrate on studying for this kind of competition. This
conspiracy and hounding have caused me multiple problems, of both a personal
and professional nature.
Please note that I am not withdrawing
from the above competitions. . . . This is why I am asking that
the proceedings taken by the CSC against me be concluded, so that, just like
all the other candidates, I can concentrate fully on the
CX03 competitions, free of the problems caused by the actions of certain
managers at Leclerc Institution.
This letter, which was postmarked
March 11, 2005, was received by the CSC on March 14, 2005,
after the Knowledge test was over.
[13]
On
March 14, 2005, the Chairperson of the Selection Board,
Mr. Trouillard, contacted Mr. East by telephone to tell him that his
request to defer the competition could not be granted. However, he invited him
to take the Knowledge test on the second scheduled date,
March 21, 2005.
[14]
In
Ms. Gariépy's absence, Diane DeSève, Senior Advisor with the centre
of expertise for recruitment and selection, confirmed the conversation with
Mr. Trouillard in a letter dated March 16, 2005:
[translation]
I cannot help but observe that you are
currently having difficulties that, according to you, prevent you from
preparing adequately.
. . .
It is out of respect for this same
principle that I cannot grant your request in view of all the candidates who
have devoted time and energy to preparing for this competition, in which the
Knowledge test was administered on March 14.
As Mr. Trouillard, the Board’s
Chairperson, discussed with you on March 16, we can allow you to
participate in a new session of the Knowledge test scheduled for
March 21, 2005 at 8:30 a.m. at Regional
Headquarters. . . .
. . .
This will be the last opportunity to take
the Knowledge test and participate in this selection process.
[15]
In
a letter dated March 18, 2005, Mr. East made a
second request to the Selection Board to defer the competition:
[translation]
. . . I do not understand how deferring
the competition and/or postponing my taking the test to a time when I am in a
position to prepare adequately for it violates the merit principle. On the
contrary, to the best of my knowledge, no candidate has been the target of
malicious action by CSC managers.
. . .
You may, however, feel you cannot defer
the process and/or give me the opportunity to be a candidate in the selection
process at the appropriate time. If so, it will be up to the adjudicator to
assess our respective allegations and to rule on this dilemma.
That letter, which was postmarked
March 21, 2005, was received by the CSC on March 23, 2005,
two days after the second Knowledge test was held.
[16]
The
appellant therefore did not attend the second Knowledge test on March 21, 2005. On March 30, 2005, the
Selection Board wrote to tell him that his requests could not be granted. The
Selection Board could neither postpone nor defer his participation in the
competition indefinitely without repercussions for the competition itself and
the merit principle.
[17]
Out
of the 150 candidates invited to sit the Knowledge test, 12 did not
attend, 5 withdrew from the competition and 59 failed the test. On
April 27, 2005, the 74 candidates who had passed the Knowledge
test received an invitation letter for the assessment of Abilities and Skills.
[18]
On
July 15, 2005, the applicant notified all the candidates of the
results of the competition by forwarding them the eligibility lists established
and the results.
IV. The Decision
under Review
[19]
On
August 1, 2005, after being informed of the results of the
competition, Mr. East appealed to the Appeal Board on the basis that the
Selection Board had violated the merit principle in excluding him from the
competitions he had entered.
[20]
The
Appeal Board concluded that, since he was facing several difficult situations, “the appellant had to
concentrate on defending himself against very serious accusations, rather than
being able to concentrate on preparing for the CX‑03 competition” (decision,
at paragraph 44). The Selection Board had not taken account of the serious
and weighty circumstances of Mr. East’s situation (decision, at
paragraph 54):
[63] In my view, given the
circumstances of the case, it was not reasonable of the Selection Board to
accommodate the appellant without taking his needs into account. The Board was
considering its own needs, rather than the appellant’s, when it postponed the
test to March 21, 2005, a date scheduled in advance.
[21]
The
merit principle had been violated, since the Selection Board had not provided
reasonable accommodation:
[64] . . . There was nothing in the
record to show that a postponement of the appellant’s participation in the test
of longer than a week would compromise the selection process. There was nothing
in the record to indicate that discussion between the Selection Board and the
appellant took place in order to determine a reasonable postponement period for
the test. . . .
[65] If the evidence in the record
is examined, nothing occurred in the competition between
March 21, 2005, (second Knowledge test session) and April 27, 2005,
(start date of the next stage in the assessment process). Therefore, we are
speaking of a one‑month period in which the appellant could have been
allowed to take his written test without jeopardizing the process in any way.
The Selection Board might possibly have explained to the appellant that it was
unreasonable to wait until the end of the proceedings against him before he
took his Knowledge test, given that it was impossible to predict when these
proceedings would be concluded, and it could have given him more than a week’s
grace to sit the test.
[22]
As
regards the argument that a period longer than a week could have increased the
risk of the test contents being leaked and compromised the merit principle, the
Appeal Board found that such an information leak was no justification for the
failure to accommodate the appellant:
[69] . . . As they were all
preparing for the test once they were informed that they had been screened in,
I fail to see how two or three weeks’ extra time for the appellant could
have affected the results in any way. The reasons adduced by the Department,
such as an information leak or unfair advantage to candidates already acting in
the position, is no justification for the failure to accommodate the appellant.
There was as much danger of an information leak of the Knowledge test questions
within a week. The Department has not convinced me that the danger would
increase over time. . . . Thus, the risk of unfair advantage
would not arise from the extension of their acting status for two or
three weeks.
[23]
Finally,
the Appeal Board concluded that Mr. East had not been careless about
informing the CSC that he could not attend the first test session.
V. Relevant
Provisions
[24]
All Public Service appointments are based on the merit principle,
in accordance with subsection 10(1) of the PSEA:
|
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 of personnel selection designed to establish the merit of
candidates as the Commission considers is in the best interests of the Public
Service.
|
10. (1)
Les nominations internes ou externes à des postes de la fonction publique se
font sur la base d'une sélection fondée sur le mérite, selon ce que détermine
la Commission, et à la demande de l'administrateur général intéressé, soit
par concours, soit par tout autre mode de sélection du personnel fondé sur le
mérite des candidats que la Commission estime le mieux adapté aux intérêts de
la fonction publique.
|
[25]
Section 21 of the PSEA sets out a mechanism that
allows unsuccessful candidates to appeal against an appointment to an appeal
board established by the Commission:
|
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.
|
VI. Issues
[26]
The
two issues raised are as follows:
(1) What is the standard
of review applicable to the Appeal Board’s decision?
(2) Did the
Appeal Board err in concluding that the Selection Board did not comply with the
merit principle because it breached its duty to reasonably accommodate
Mr. East?
VII. Analysis
(1)
What is the standard of review applicable to the Appeal Board’s decision?
[27]
In
Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, it
was stated that judicial review is a two-stage process. In the first stage, the
reviewing court ascertains whether the case law has already determined the degree
of deference required with regard to a particular category of questions.
[28]
Here,
the courts have established the standard of review for questions relating to
the selection process in the Public Service. In Davies v.
Canada (Attorney General), 2005 FCA
41, 330 N.R. 283, at paragraph 23, the Federal Court of Appeal
concluded in its analysis that the applicable standard for reviewing an appeal
board’s decision on such questions is reasonableness. The Federal Court of
Appeal has explained the reasonableness standard in some recent decisions in
which it applied that standard to questions of mixed fact and law, such as
whether an appeal board’s conclusions were supported by the evidence (McGregor, above, at paragraph 14; Canada (Attorney
General) v. Clegg, 2008 FCA 189, 168 A.C.W.S.
(3d) 109, at paragraph 18).
[29]
The
Federal Court of Appeal has concluded that questions of law alone must be
reviewed on a standard of correctness. Such questions include the decision as
to which party has the burden of proof in the proceedings, the jurisdiction of
an appeal board, questions of procedural fairness and natural justice and the
right standard to be selected and applied by an administrative tribunal (Clegg,
McGregor and Davies, above).
i.
Did the
Appeal Board err in concluding that the Selection Board did not comply with the
merit principle because it breached its duty to reasonably accommodate
Mr. East?
[30]
The
applicant argued that Mr. East’s allegations concern labour relations, an
external factor that does not require accommodation. According to the
applicant, the duty of reasonable accommodation applies to situations involving
a ground of discrimination set out in section 3 of the Canadian Human
Rights Act, R.S., 1985, c. H‑6, which is not the case here.
[31]
Contrary
to what the applicant argues, the duty of reasonable accommodation does not
apply only to situations involving a ground of discrimination set out in
section 3 of the Canadian Human Rights Act. A candidate may ask a
selection board to take into account a disability, illness or any other factor
likely to affect his or her performance on a test in a competition (Cyr v.
Canada (Attorney General) (2000), 201 F.T.R. 191, 160 A.C.W.S.
(3d) 93 (F.C.T.D.), at paragraph 18). However, the purpose of an appeal
under section 21 of the PSEA is not to identify discriminatory standards
and determine whether they can be justified. Thus, the question is not whether
it is impossible to accommodate a candidate with a disability, but rather what
method of assessment is needed to ensure a selection based on merit (Tremblay,
above, at paragraphs 25 and 33).
[32]
In
Girouard, above, at paragraphs 10‑11 and 14,
Justice Barry L. Strayer held that it is not necessary to prove a
disability within the meaning of the Canadian Human Rights Act to invoke
the duty of reasonable accommodation. The Federal Court of Appeal stated that,
to be accommodated, an appellant need only prove that it is actually impossible
for him or her to take the test:
[13] As a practical matter the
respondent department may have to show that if it did take steps to accommodate
one or more candidates, such accommodation was not only reasonable in relation
to the nature of the needs of those candidates but also was not such as to be
unfair to other candidates. Such debate as there may well be over the
accommodation made, or not made, is all within the context of determining
whether merit was compromised. I respectfully agree with the application judge’s
example of questions which should be considered in these circumstances:
(1) Was the extra time allotted
appropriate given the nature of the job?
(2) Was the extra time fair to
the other candidates?
(3) Would Girouard's disability
mean more time was needed by her?
(4) Was extra time appropriate
given the nature of the test?
The appeal board should have
focussed on considerations such as these.
[33]
In
its decision, the Appeal Board applied the tests laid down in Girouard.
However, the Appeal Board disputed the Selection Board’s reasoning when it
concluded that an information leak was no justification for the failure to
accommodate the appellant more generously. It is nonetheless the opinion of
this Court that the Appeal Board erred in law by disregarding the fact that
even the method of accommodation is subject to the merit principle. It is an
appeal board’s task to determine whether the accommodations provided allowed a
candidate to compete on an equal footing with the other candidates (Tremblay,
above, at paragraph 25). The duty of an appeal board is not to reassess
the candidates to protect an appellant’s rights but rather to conduct an
inquiry to determine whether the selection has been made in a way consistent
with the merit principle (Charest, Blagdon and Girouard,
above). The selection of successful
candidates therefore had to respect the merit principle, regardless of
individual results (McGregor, above).
[34]
In
Charest, the Federal Court of Appeal concluded that a leak of
information about interview questions could interfere with the merit principle.
In the instant case, the Selection Board’s statement that there was a real risk
of an information leak that could interfere with the merit principle should
have been taken seriously. Mr. East had requested a theoretical period of
time, that is, until his problems were over. The Appeal Board suggested that,
between March 21, 2005, the date of the second Knowledge test, and
April 27, 2005, the start of the next stage of the assessment
process, there was a period of nearly a month in which “the appellant could
have been allowed to take his written test”. The Appeal Board concluded that “the
risk of unfair advantage would not arise from the extension of their acting
status for two or three weeks” (decision, at paragraphs 65 and 69).
[35]
It
was impossible for the Appeal Board to determine the right period to make the
risk of a leak acceptable. It is not necessary to have objective evidence
demonstrating that the accommodations recommended by the Appeal Board would not
have negatively affected the other candidates in the competition. As the selection
process did not proceed in this manner, it is impossible to say with certainty
what effect the use of an alternative assessment method would have had on the
other candidates. Requiring the CSC to produce such evidence would place it in
an untenable position: “In order to justify the decision to depart from the
recommendations of an outside expert, a government department only needs to
demonstrate that there were legitimate concerns that a problem would have
arisen if the process had moved forward” (Tremblay, above, at
paragraph 35). Accordingly, the determination that there would be less
risk of a leak after a week but more after two or three weeks seems to fall
within a selection’s board discretion and expertise. The Appeal Board erred in
substituting its opinion for what seems to have been a reasonable precaution to
protect the merit principle in the selection process.
[36]
Moreover, the extra time allotted was appropriate in light
of Mr. East’s carelessness. The Appeal Board made a patently unreasonable
finding of fact that was not supported by the evidence when it stated that the
delay in notifying the Selection Board was reasonable.
[37]
The
Selection Board received Mr. East’s first letter on the day of the test, March 14, 2005. The Court
is of the opinion that it was already too late for Mr. East to request
accommodation. He had been aware of the test date since February 17, 2005, that is,
nearly a month before the test. In February, he had been notified that the
criminal proceedings against him would be dropped. He also knew that his
problems, namely the disciplinary action and grievances, still remained, but
the evidence shows that his situation did not change between the date of the
invitation letter and the date of his first letter. In short, there is no evidence
explaining why Mr. East did not ask the Selection Board to accommodate him
prior to the test date.
[38]
The
Appeal Board found that the delay was plausible given the intervening weekend.
However, it was patently unreasonable to find that the intervening weekend
could justify the delay in notifying the Selection Board, especially in this
case, since the invitation letter clearly stated that candidates had to call
the CSC if there was a problem. The conclusion that Mr. East “preferred to
make a written, rather than an oral, request, so as to have tangible proof of
his request” hardly explains why he failed to call the Selection Board the same
day he wrote his letter.
[39]
On
March 14, 2005, after receiving the first letter, the Selection Board
informed Mr. East by telephone that he could attend a second test to be
held a week later. The second attempt to postpone the test involved the
same problems; the second letter was received two days after the
second Knowledge test session. Mr. East sent the second letter on the
day of the test, March 21, 2005, which was too late for the Selection
Board to take account of his needs. Finally, contrary to what the Appeal Board
claimed, the applicant was not obliged to prove the appellant’s bad faith.
VIII. Conclusion
[40]
The
Appeal Board erred in deciding that the Selection Board did not comply with the
merit principle because it breached the duty to reasonably accommodate
Mr. East. It was open to the Selection Board to find that delaying the
test for Mr. East by more than a week created a risk that information
about the test questions would be leaked and might therefore interfere with the
merit principle. The Appeal Board’s findings were not reasonably supported by
the evidence.
[41]
In
addition, the Appeal Board made a patently unreasonable finding of fact when it
stated that Mr. East’s delay in notifying the Selection Board was
justified. Although Mr. East may have had good reasons for requesting
accommodation, he did not demonstrate that he had good reasons for his delay in
notifying the Selection Board. Without a convincing reason, the Selection Board
had no duty to accommodate in response to a late request.
JUDGMENT
THE COURT ORDERS that
1.
The
application for judicial review be allowed;
2.
The matter
be referred back to a differently constituted Appeal Board for reconsideration
based on what was before the Selection Board;
3.
With
costs.
“Michel
M.J. Shore”
Certified
true translation
Brian
McCordick, Translator
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