Date: 19990303
Docket: T-1500-98
BETWEEN:
ELI ABRAHAM, CHERYL BROWN, LORRAINE DELL,
PATRICK GILLIS, ROBERT HAAS, JENNY HOWLETT,
VIVIAN LINDFIELD, RICHARD OWEN, SHEILA JEAN PAUL,
DANIEL STEIN, MONA LISA MANALANG, and VICTORIA YIP
Applicants
- and -
ATTORNEY GENERAL OF CANADA, ANNIE PAPAIOANNOU,
CHRISTINE STIRLING, NORMAN CHONG, CANAAN GOLSHANI,
ERIK BHATTACHARYA, TONY REDMOND, NIXON DIAS,
SUZETTE ECCLESTON, GREG VANDERSPEK, and JULIA ROULSTON
Respondents
APPLICATION UNDER SECTION 18.1 OF THE FEDERAL COURT ACT
REASONS FOR ORDER
CULLEN J.:
FACTS:
[1] The applicants apply for judicial review of a decision of the Public Service Commission of Canada Appeal Board (hereinafter "the Board"), dated 15 June 1998. The appeals were lodged against the selections for appointment arising from closed competition 96-NAR-SOR-TOR-CC-01 to the position of Collection Officer (PM-02) with Revenue Canada ("the Department"). To assess candidates, the Selection Board employed by the Department used a written examination and an oral interview. The written examination assessed all the knowledge requirements for the position as well as some of the abilities requirements. The remaining abilities requirements and personal suitability were assessed by means of an oral interview. All the applicants failed to meet the minimum standard for the abilities assessment, which was 72 marks out of a possible 120 marks.
DECISION UNDER REVIEW:
[2] The Board dismissed allegations advanced by the applicants in support of appeals brought pursuant to section 21 of the Public Service Employment Act, (hereinafter "PSEA") R.S.C. 1985, c. P-33, as amended. The Board found that the applicants, with the exception of one limited allegation, failed to establish that the selection process was conducted contrary to the merit principle prescribed by section 10 of the Act.
ISSUES:
[3] 1. Did the Board err in law and reach its decision in a manner not consistent with the rules of procedural fairness or natural justice when it granted an adjournment to allow the Department to present additional information regarding the assessments of the applicants' oral communication skills, even though that information had not been disclosed in accordance with the disclosure requirements under the Act?
[4] 2. Did the Board err in law in failing to address the second allegation of the applicants?
ARGUMENT:
Applicants:
[5] The applicants submit that the Public Service Employment Regulations, 1993, (hereinafter "the Regulations") provide a detailed code governing disclosure of allegations following the launching of appeals under section 21 of the PSEA. As a general rule, the parties are required to disclose to each other the evidence and arguments supporting their respective positions well in advance of the hearing fixed for the appeal. This Court has ruled that, under the previous regulations, which were less detailed, additional allegations may not be presented by an appellant when she could have done so in advance of the hearing itself: A.B. v. Comité d'appel de la Commission de la fonction publique (Canada) (1996), 115 F.T.R. 54 ("A.B."); Hasan v. Canada (A.G.) (1996), 206 N.R. 175 (Fed. C.A.).
[6] The applicants submit that, in the present case, the evidence and argument relied upon by the Department in response to the allegation concerning oral communications assessment ought not to have been admitted by the Appeal Board as the Department failed to demonstrate the circumstances necessary to allow such information. The Department failed to provide evidence regarding its oral communications assessment despite the applicants' request through the disclosure process. During the disclosure process, the Department repeatedly justified its failure to provide such evidence on the basis that the assessment of oral communications was part of a "global assessment" of the applicants" qualifications. During the hearing itself, each member of the Selection Board stated explicitly that the Department did not have evidence to support the oral communications assessment. It was only after the Appeal Board Chairman indicated that the appeal would be allowed in the absence of such evidence, and the hearing was adjourned to another date, that the Department attempted to provide such evidence to the Board and the applicants. The applicants submit that because the Department failed to provide any basis regarding why this information was presented at such a late stage, particularly in view of the specific questions raised during the disclosure process, the evidence and supporting argument should not have been admitted.
[7] It is submitted that the Board committed an error law in failing to address one of the allegations raised by the applicants. This error requires the intervention of the Court, particularly given the Board's responsibility to inquire into and uphold the merit principle in such circumstances: Charest v. A.G. of Canada, [1973] F.C. 1217 (C.A.) ("Charest"); P.S.A.C. v. Canada (Public Service Commission), [1992] 2 F.C. 181 (T.D.); Canada (A.G.) v. Bates, [1997] 3 F.C. 132 (T.D.) ("Bates").
Respondent:
[8] The respondent submits that the Chairman acted correctly and within the scope of his jurisdiction when he permitted the department to adduce evidence and make arguments concerning the selection board"s assessments of the oral communications abilities of the candidates.
[9] Subsection 21(1) of the PSEA provides that where an appeal against a selection for appointment is brought, the Commission must establish a board "to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be heard." The purpose of such an inquiry is to investigate the circumstances of the selection process and determine whether an appointment would be contrary to the merit principle. Put differently, the purpose of an appeal is to expose and correct errors in the application of standards which have the effect of undermining the principle of selection by merit: Charest, supra; Bates, supra. The respondent submits that the Chairman had this principle in mind on 8 January 1998 when he expressed concern that there was no material before him to indicate how the selection board reached its conclusions about the oral communications abilities of the candidates and on 13 January when he decided to allow the Department to adduce evidence. He took guidance from the judgment of McGillis J. in Field v. Canada (A.G.) (1995), 93 F.T.R. 158 ("Field").
[10] The respondent submits that the Chairman was acting in accordance with the purpose of his inquiry and the principle of fairness in allowing the Department to adduce evidence concerning the "evidentiary framework" supporting its findings. Subsection 21(1) obliges an appeal board to provide the Department with an opportunity to be heard.
[11] The respondent submits that the Chairman did not err in granting the Department a brief adjournment to permit the members of the Selection Board to refresh their memories on 8 January 1998, as the members were not able to recall the basis for their assessment of the oral communications abilities of the candidates. It is submitted that the Chairman found as a fact that the evidence given by the members, after they had refreshed their memories from their notes, was not "new," that it existed from the time the assessments were done, and that he was not satisfied that the selection board had created responses after the fact to meet the applicants' allegations. It is submitted that these findings were supported by the evidence before the Board and that there is no basis for intervention by this Court: Rohm & Haas Can. Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (Fed. C.A").
[12] It is submitted that the Department fulfilled its obligation, set out in subsection 24(1) of the Regulations, to make full disclosure of the information pertaining to the appellants and the successful candidates that is liable to be disclosed before the Board. It is submitted that, during the hearing on 13 January, the applicants conceded that they did not complain to the Board Chairman about the adequacy of disclosure because she "did get information" and the department did not refuse information. The respondents submit that, by failing to make a complaint and by participating in the Appeal Board hearings, the applicants effectively waived any concerns they might have had about the extent of disclosure. It is submitted that the obligation to make disclosure is limited and depends in part upon the nature of the questions asked. After ruling on 13 January 1998 that the members of the Selection Board would be permitted to review their notes and adduce evidence about their assessment of the oral communications abilities of the candidates, the Chairman ordered that the parties should hold a further disclosure meeting. It is submitted that the Chairman found as a fact that although the information had been disclosed to the appellants' representatives during a break in the hearing, those representatives did not, with one exception, challenge the particulars of the assessments.
[13] It is submitted that the Chairman carefully considered all the allegations advanced by the applicants, including that pertaining to the marking of Question 1. There was evidence before the Chairman that the same marking scheme was applied to all candidates and that candidates were never advised that each individual section of the question was worth ten marks. The Chairman adverted to this issue in his reasons and carefully recounted the department's explanation of the marking scheme. It is submitted that the Chairman implicitly concluded that this approach to marking the question was reasonable and did not violate the merit principle. Had he concluded that this approach was unreasonable and violated the merit principle, he would have said so in his reasons. However, he allowed the appeal on the sole ground that another unrelated allegation had been made out. In the circumstances, his failure to state explicitly that the approach was reasonable cannot be taken as proof that he failed to address the issue. Far from ignoring the allegation, the Chairman summarized the submissions of both parties and then turned his attention to the specific marks awarded to particular candidates. It is submitted that in entertaining submissions concerning the marks awarded to particular candidates under this marking scheme and in concluding that the board had good cause for not awarding marks for the reasons and actions identified by those candidates, the Chairman was endorsing the propriety of the marking scheme. It is further submitted that the Chairman's decision on this issue was not patently unreasonable.
ANALYSIS:
Issue 1:
[14] I have determined that the Board did not err in law when it granted an adjournment to allow the Department to present additional information regarding the assessments of the applicants' oral communication skills.
[15] Subsection 25(8) of the Regulations reads:
| (8) Despite subsections (3) and (4), where (a) full disclosure has not been completed within the period referred to in subsection (3) or a period extended under subsection (6) or (7); or (b) the appeal board believes on reasonable grounds that full disclosure cannot be completed within the period referred to in subsection (3) or a period extended under subsection (6) or (7); the appeal board may on its own initiative make an order imposing any measure it considers necessary for the completion of full disclosure and, if necessary, setting a new time limit for that completion. 25(9) |
(8) Malgré les paragraphes (3) et (4), le comité d'appel peut, par ordonnance, imposer d'office toute mesure qu'il estime nécessaire pour permettre de réaliser la divulgation complète lorsque, selon le cas : a) la divulgation complète n'a pas été réalisée dans le délai visé au paragraphe (3) ou prorogé en vertu des paragraphes (6) ou (7); b) il a des motifs raisonnables de croire que la divulgation complète ne pourra être réalisée dans le délai visé au paragraphe (3) ou prorogé en vertu des paragraphes (6) ou (7). 25(9) |
[16] I agree with the respondent that the Board acted within the scope of its authority as set out in subsection 25(8) in granting the adjournment to allow the Department to present additional information.
[17] I find that the Board properly took guidance from the Field case. In Field, McGillis J. stated:
In the present case, there was an absence of any cogent evidence, either oral or documentary, in the record to establish the manner in which the merit of the candidates was assessed by the Selection Board on the qualification of personal suitability. In the absence of an appropriate evidentiary framework, the Appeal Board could not have properly determined that the merit principle was respected in the assessment of the candidates on personal suitability.
[18] In the instant case, the Board ruled on 13 January 1998 that the members of the selection board would be permitted to review their notes and adduce evidence about their assessment of the oral communications abilities of the candidates. Following that ruling, the Chairman ordered that the parties should hold a further disclosure meeting. The Chairman applied the test set out in Field and made the decision to proceed with the hearing because evidence to be given by the Selection Board after the ruling on 13 January was sufficient to satisfy him that there was an adequate evidentiary framework on which to proceed.
[19] The applicants submit that the Department failed to provide evidence regarding its oral communications assessment despite the requests of the applicants through the disclosure process. This matter was dealt with in a satisfactory manner by the Chairman at page 33 of the Board's reasons and need not be revisited by this Court.
[20] The applicants further submit that the Department failed to provide any basis for why this information was presented at such a late stage. I note that subsection 25(8) of the Regulations allows the Board, on its own initiative, to make an order allowing such late presentation of information, and does not require the party presenting that information to provide any explanation as to why the information must be presented at that time.
[21] I agree with the respondent that there exists a distinction between a situation in which an applicant fails to make an allegation in the first instance, in which case the applicant herein alleges that the Court has adopted a strict approach, and situations in which the Board grants an adjournment to allow the Department to review its evidence, adduce further evidence and make renewed disclosure. The former situation deals with the rules applicable to pleadings while the latter deals with the rules which apply in the presentation of evidence. The Court in the instant case need not adopt the strict approach adopted by the Court in A.B., supra.
[22] The fact that the Board provided for a renewed disclosure meeting supports my finding that the Board complied with the duty of fairness.
Issue 2:
[23] The applicants' second allegation, which they contend the Board did not address, was that "The Board was patently unreasonable in that they did not award any candidate marks for identifying the ten items which were required in Question #1 of the Written Abilities which contradicts the instructions provided by the Board." The respondent maintains that the Chairman did address the second allegation in the course of summarizing the submissions of both parties, addressing the specific marks awarded to particular candidates and concluding that the Board had good cause for not awarding marks.
[24] I have determined that the Chairman did address the second allegation and thus did not err in law on this point. At page 21 of his reasons, he sets out the allegation. At page 23, the Chairman summarized the evidence of the department's representative on this matter:
Selecting an item without providing an appropriate explanation and action resulted in no marks being awarded even if the item was appropriate to the task; a correct item with either a correct explanation or action, but not both, meant that a maximum of two marks was awarded. If a correct item, explanation and action were given, then a maximum of two marks were awarded. No single part of the tasks set in the question were worth ten marks. Had candidates been awarded marks simply for listing items, as Ms. Gee had alleged should have occurred, the board would have been assessing the ability to transpose information rather than their ability to analyse and evaluate information and to recommend or take appropriate action. As the task involved determining the company's ability to pay its taxes, simply listing items without any analysis or action would not demonstrate whether a candidate had made such a determination in the context of the item(s) chosen.
[25] The Chairman's conclusion on this matter is at page 28:
I am not satisfied that I should intervene in the instances where it was alleged that the analyses (reasons) or the actions given by specific appellants in their answers merited marks. I have been persuaded by the explanations provided at the hearing that the board had good cause for not awarding marks for those answers.
[26] I have determined that, although the Chairman's conclusion on this allegation did not specifically mention the identification of items in Question 1, he did address this allegation in the course of his reasons. His summary of the evidence offered by the department's representative, in particular, shows that he considered the applicants' allegations with respect to the portion of Question 1 which required identification of items. His conclusion at page 28 implicitly includes a dismissal of the allegation with respect to identification of items in Question 1. The fact that he concluded this matter in favour of the Department suggests that he accepted the evidence of the departmental representative and rejected in their entirety the allegations with respect to all portions of Question #1.
[27] I have determined that the Board did not err and acted within its jurisdiction, which is described accurately at page 26 of its reasons:
An Appeal Board"s jurisdiction is to review the decisions made by a selection board to ensure that the ultimate outcome of the selection process respects the merit principle. It can only intervene in the selection board"s decisions if it finds them to be patently unreasonable, i.e. clearly irrational. If an Appeal Board concludes that a selection board's decisions are ones that can be supported on the information the board had to consider, then it cannot intervene. An Appeal Board may not substitute its judgment for that of a selection board.
CONCLUSION:
[28] The application is dismissed.
OTTAWA, ONTARIO B. Cullen
March 3, 1999. J.F.C.C.