Federal Court Decisions

Date: 19971222

Docket: T-2612-96

         IN THE MATTER OF the Public Service Employment Act,

         Section 21

         AND IN THE MATTER OF the appeal of Joe Petruszkiewicz,

         Aubrey Smith, Vinodchandra D. Modi, Anthony Farrelly, and

         Nicholas Dobrowsky against the selections for appointment from

         closed competition 94-TAX-HAM-CC-23 to positions as Team

         Coordinator (AU-04) with Revenue Canada, Tax Services,

         Hamilton, Ontario.

BETWEEN:

     JOE PETRUSZKIEWICZ, AUBREY SMITH, VINODCHANDRA W. MODI,

     ANTHONY FARRELLY and NICHOLAS DOBROWSKY

     Applicants

     - and -

     ATTORNEY GENERAL OF CANADA

     (Revenue Canada)

     Respondent

     REASONS FOR ORDER

CULLEN J.:

[1]      This is an application for judicial review of a decision of a Public Service Commission Appeal Board [hereinafter, the "Tribunal"], dated October 21, 1996, which dismissed the applicants' appeal from a decision of a selection board of the Public Service Commission [hereinafter, the "Selection Board"].

[2]      The applicants request an Order that the Tribunal's decision be set aside, and that question 6 (referred to below) be re-marked by the Selection Board.

THE FACTS

[3]      The applicants successfully appealed a decision of the Selection Board regarding selections for appointment in a closed competition [hereinafter, the "original appeal"]. The appeal was allowed, in part, due to the approach the Selection Board took to marking the answer given by one of the four successful candidates in the competition, Ms. Marie Giallonardo, to question 6 of the written test in the competition.

[4]      The corrective measures imposed by the Tribunal required the Selection Board to review all the candidates' written examinations and to re-mark the answers to questions 6 and 10(c).

[5]      The re-assessment of Ms. Giallonardo's answers resulted in a gain of 18 marks in her response to question 6, and a loss of 10 marks on question 10(c). Ms. Giallonardo nevertheless again surpassed the threshold requirement for being placed on an eligibility list for the position of Team Coordinator with Revenue Canada in Hamilton.

[6]      In the view of the applicants, the re-assessment was unsatisfactory. The applicants challenged Ms. Giallonardo's answers again, and appealed once more to the Tribunal. The applicants submitted that 1) Ms. Giallonardo should not have received full marks for certain one-word answers given in response to question 6; and 2) Ms. Giallonardo's answer to question 10(c), for which she received marks, was wrong. In support of their case, the applicants maintained that their answers to question 6, in contrast to Ms. Giallonardo's answers, were better because they contained clearly explained outlines.

[7]      The same Tribunal chairperson, Mr. J.R. Ojalammi, heard both the original appeal and the appeal currently under judicial review.

[8]      The Tribunal decided that Ms. Giallonardo's answers to question 6 "could form a valid basis for a determination that she had the requisite knowledge." The Tribunal concluded that the Selection Board's decision to accept Ms. Giallonardo's answers to question 6, with the marks awarded as indicated, was not patently unreasonable. The Tribunal likewise concluded that the Selection Board's acceptance of Ms. Giallonardo's answer to question 10(c) could not be said to be patently unreasonable and must be allowed to stand.

DISCUSSION

Issue #1: The answers to question 6

[9]      The role of the Tribunal is not to re-assess the candidates or to substitute its judgment for that of the Selection Board.¹ Rather, the Tribunal is to hold an inquiry to determine whether the Selection Board made its choice in accordance with the merit principle. The standard of review of the Tribunal's decisions in this regard is patent unreasonableness.²

[10]      I conclude that the Tribunal's finding that the Selection Board's assessment of Ms. Giallonardo's answers was reasonably open to it. The issue was well within the Tribunal's expertise. There is no legal reason for judicial interference in the Tribunal's finding.

---

Issue # 2: The allegedly incorrect answer to question 10(c)

[11]      The Tribunal concluded that the Selection Board had not erred in accepting the answer "arrange affairs to pay minimum tax allowed by law" as a taxpayer right during an audit. The Tribunal concluded that the Selection Board's decision, in this respect, was not patently unreasonable. In fact, the allegedly wrong answer to question 10(c) seems to come directly from the "Declaration of Taxpayer Rights," which, as a result of the original appeal, was one of the documents that the Selection Board was directed to use in re-marking the exam. Nothing that counsel to the applicants has presented to me indicates that the Tribunal's conclusion was irrational or unreasonable in any way.

CONCLUSION

[12]      For the above reasons, this application for judicial review is dismissed.

[13]      Counsel to the respondent submits that, on the basis of the decision of this Court in Scarizzi v. Marinaki (1994), 87 F.T.R. 66, this is a case in which costs should be awarded to the respondent. However, unlike the case at Bar, the Scarizzi case concerned a Tribunal which had directed that the answers of only one particular candidate be remarked, and the results were quite detrimental to that particular candidate. No clear parallel can be drawn to the case presently before this Court. Although I have my reservations about whether or not this case should have even been brought before this Court, the respondent has not made out a sufficient case against the applicants for costs. Accordingly, there will be no order for costs.

OTTAWA, ONTARIO      B. Cullen

    

December 22, 1997.      J.F.C.C.

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     ¹      Blagdon v. Public Service Commission, [1976] F.C. 615 at 623.

     ²      Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-964.