Date: 20000120
Docket: A-699-98
CORAM: STRAYER J.A.
LÉTOURNEAU J.A.
MALONE J.A.
B E T W E E N:
CATHERINE LOUISE BOUCHER
and KAREN McBRIDE
Appellants
" and "
ATTORNEY GENERAL OF CANADA
Respondent
HEARD at Ottawa, Ontario on Thursday, January 20, 2000
JUDGMENT delivered from the Bench at Ottawa, Ontario on Thursday, January 20, 2000
REASONS FOR JUDGMENT BY: STRAYER J.A.
Date: 20000120
Docket: A-699-98
C O R A M: STRAYER J.A.
LÉTOURNEAU J.A.
MALONE J.A.
B E T W E E N:
CATHERINE LOUISE BOUCHER
and KAREN McBRIDE
Appellants
" and "
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario
on Thursday, January 20, 2000)
STRAYER J.A.
[1] This is an appeal from a decision of the Trial Division which dismissed an application for judicial review of a decision of a Public Service Commission Appeal Board ("PSCAB"). That decision had in turn confirmed a decision of a Selection Board in an appeal taken to the PSCAB pursuant to subsection 21(1) of the Public Service Employment Act.
[2] The selection in question was for positions as Immigration Settlement Counsellors. The statement of qualifications for these positions as published by the Department of Employment and Immigration in April, 1996, specified the following qualifications:
| (1) Knowledge of the relevant legislation, of the Branch and of issues concerning immigrant or refugee settlement. |
| (2) Abilities and skills of interviewing, investigation, etc. |
| (3) Personal suitability, essentially a matter of interpersonal relations and judgment. |
| (4) Knowledge of English. |
| (5) Reliability/security. |
[3] In preparing for the selection of candidates, the Selection Board gave different weightings to each of these factors, assigning only 10% to Knowledge. It also determined that, while certain of the Ability qualifications and the Suitability qualifications would be critical, meaning a failure to pass on these factors would exclude a candidate, Knowledge would not be critical and a failure on this factor before the Selection Board would not be fatal to a candidacy. Marks obtained in the Knowledge component would however be added to the overall score of each candidate.
[4] As a result of written tests and interviews and the examination of references it was found that five candidates were qualified for the position. It is not in dispute that, of these five, three had failed the Knowledge factor. The two appellants before us who were also candidates were both unsuccessful although they had passed the Knowledge factor.
[5] The appellants filed appeals under section 21 and appeared before the PSCAB. They contended that the Selection Board failed to respect the merit principle by failing to treat success with respect to the Knowledge factor as a condition of appointment, and by assigning to it the low weight of 10% of total possible marks. They also contended that the Selection Board had failed to take into account certain evidence that could have benefitted their candidacies and which they wanted to submit to the PSCAB in the appeal. There were certain other allegations raised before the PSCAB as well which were rejected or not acted upon by it, but these are not relevant to the present proceedings.
[6] The appellants then sought judicial review in the Trial Division of the PSCAB decision concerning the two issues previously mentioned. The trial judge held that the Selection Board did not err in respect of its treatment of the Knowledge factor. He considered it sufficient that the Selection Board had included the scores on the Knowledge test in the overall marks assigned to each candidate: it was not necessary that a pass in Knowledge be treated as a condition of selection. The PSCAB had therefore not made any reviewable error in confirming the Selection Board decision. He also concluded that the PSCAB's decision in respect of new evidence was one which was open to it.
[7] Turning to the first issue, that of the treatment accorded to the Knowledge factor by the Selection Board, we are of the view that this involves an issue of law as to the requirements of the merit principle and we therefore consider that the PSCAB's decision to confirm that process equally involved a conclusion of law. We are not persuaded that the PSCAB is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue. The Board is appointed ad hoc. We conclude in this respect that the standard of review which the Trial Division should have applied is that of correctness.
[8] In accordance with this standard we find that the Selection Board erred in law in not requiring that candidates succeed on each of the advertised qualifications for this position. This was in effect a failure to assess the factor of Knowledge. Following what this Court held in Tiefenbrunner et al v. A.G. of Canada1 we conclude that such a failure amounted to an error of law on the part of the Selection Board. In effect, it eliminated Knowledge as a qualification notwithstanding the advertised requirements for the job. As the Court has held on other occasions, a Selection Board cannot change the advertised qualifications by eliminating one or more of them: to do so is unfair to those who might otherwise have applied but failed to do so because they recognized that they did not have all the advertised qualifications.2
[9] Nor are we persuaded, as was the learned Trial judge, that the Knowledge factor was adequately assessed by including a candidate's mark on this factor in his total score: the fact remains that this factor was eliminated as a prerequisite for the position.
[10] Having come to this conclusion, it follows that the appeal must be allowed, the decision of the PSCAB must be set aside, and the matter remitted to it. It is therefore unnecessary for us to consider the second issue involving questions of evidence as they arose on the first hearing of that Board leading to the decision that is now being set aside.
(s) "B.L. Strayer"
J.A.
__________________
1 A-915-91, November 10, 1992, unreported (F.C.A.).
2 See Bambrough v. Appeal Board [1976] 2 F.C. 109; Attorney General v. Blashford et al [1991] 2 F.C. 44.
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