Date: 20030123
Docket: T-1177-01
Neutral citation: 2003 FCT 65
BETWEEN:
KENNETH LANGILLE and MALCOLM GIVENS
Applicants
and
ATTORNEY GENERAL OF CANADA
(Department of National Defence) and
NINO CERULLO
Respondents
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of the Public Service Commission of Canada Appeal Board (the "Appeal Board"), dated the 25th of May, 2001, wherein the Board upheld the selection of the respondent Nino Cerullo to the position of Section Head, Aeronautical Engineering, (EN-ENG-06) Department of National Defence, National Capital Region. The applicants seek an Order of this Court that the decision under review be set aside and that the matter be remitted to the Appeal Board for rehearing and redetermination by a differently constituted panel.
[2] By contrast, the respondents seek an Order dismissing this application for judicial review.
BACKGROUND
[3] The background to this application for judicial review is, in part, briefly summarized in paragraph [2] of the reasons for the decision that is under review. That paragraph reads as follows:
The department [the Department of National Defence] issued a competition poster with a closing date of 2 August 2000 for the position of Section Head, specialties in Aeronautical Engineering, Aircraft Propulsion and Mechanical Systems, and Avionics, Electrical, Software Engineering. The Selection Board, comprised of Chairperson George Graham, Director, Technical Airworthiness, and Col. Terry Leversedge, Director, Fighters and Trainers, relied on the applications and résumés, their personal knowledge of the candidates, reference checks and the results of a Senior Managerial Simulation Exercise ... and the Management In-basket ... to determine that two applicants were fully qualified for the position of Section Head, Aeronautical Engineering. Their names were placed on an eligibility list ranked in order of merit as follows:
1. Nino Cerullo
2. Ken Langille
The first ranked candidate was appointed to the position. The second ranked candidate, Mr. Langille, brought an appeal against the appointment of successful candidate Cerullo. Mr. Givins [sic] was not found qualified, having failed to attain a passing grade on the Senior Managerial Simulation Exercise ..., and brought his appeal against the appointments made or proposed. [citations omitted]
[4] Later in its reasons, the Appeal Board wrote:
[12] The appellants [here the applicants] next alleged that after the closing date of the selection process, the Selection Board removed the knowledge criteria from the statement of qualifications. The original statement of qualifications listed various rated requirements for all positions, [there was apparently only one position at issue] including the following knowledge criteria:
Knowledge of the principles of management and leadership.
Knowledge of aeronautical engineering principles and practices as applied to the development, design and airworthiness criteria of aircraft.
Knowledge of DND and governmental organization, objectives, priorities and administrative procedures, including staffing for civilian and military personnel, financial management, budget forecasting, supply and accounting and other support procedures.
Knowledge of the Canadian civil and military aviation industry in particular.
Knowledge of international aviation industry in general.
An amended version of the statement of qualifications, dated 8 November 2000, indicated no knowledge requirements were required for the position.
[5] Before me, it was not in dispute that the knowledge criteria had been deleted from the statement of qualifications after the closing date of the selection process. It was further not in dispute that the deletion was made by the Chairperson of the Selection Board, George Graham, an officer in the Department of National Defence and the individual to whom the successful candidate would report. What was in dispute was whether or not Mr. Graham made the deletion in his capacity as Chairperson of the Selection Board or in his capacity as an officer in the Department of National Defence.
THE ISSUES BEFORE THE APPEAL BOARD AND ITS CONCLUSIONS
[6] The Appeal Board described the issues before it in the following terms:
The appellants' representative submitted the following common allegations on their behalf (reproduced with errors and omissions as written):
1. The first ranked candidate, Mr. Nino Cerullo, does not have the required experience for this position and should not have been screened in. His proposed appointment does not respect the merit principle.
2. The Selection Board improperly modified the Experience requirements after the competition closed. This broadened the requirements and enlarged the pool of potential candidates. The Appeal Board's intervention is required.
3. The Selection Board improperly removed the Knowledge elements from the Statement of Qualifications after the competition closed. This broadened the requirements and enlarged the pool of potential candidates. The Appeal Board intervention is required.
4. Alternately, should the Appeal Board determine that the Selection Committee's actions were appropriate in relation to Allegation No. 3:
The Selection Board did not deem it necessary to assess Knowledge because, as stated in Disclosure, it "knew that all candidates would have the required knowledge". In not conducting a relative assessment of the candidates' knowledge, the Selection Board failed to assure that the proposed appointment would be based on merit. [emphasis in original]
[7] In relation to the first issue, the Appeal Board quoted the following extract from the reasons of Justice Rothstein, then of the Trial Division of this Court, in Scarizzi v. Marinaki[1]:
[6] It is clear that one of the functions of the Appeal Board is to ensure, as far as possible, that Selection Boards adhere to the merit principle in selecting candidates for positions from within the Public Service in accordance with s. 10 of the Act. However, it is not empowered to substitute its opinion with respect to a candidate's assessment or examination for that of the Selection Board. Only if a Selection Board forms an opinion that no reasonable person could form, may an Appeal Board interfere with the decision of the Selection Board.
...
[14] ... an Appeal Board should restrict itself to interfering with a decision of a Selection Board only where the Selection Board's decision was obviously unreasonable. ... the circumstances must be such that the awarding of marks by the Selection Board is clearly unreasonable... .
I regard the foregoing words of Justice Rothstein as reflecting, in relation to circumstances equivalent to those surrounding the first and second issues before the Appeal Board herein, the standard of patent unreasonableness. The Appeal Board then concluded in the following terms in respect of the first issue:
[21] The appellants have not persuaded me that this is a case where the decision of the Selection Board is clearly or obviously unreasonable. I accept the department's contention that the Selection Board did not require in-depth or extensive specialisation in any one of the three areas stipulated - aircraft structures, flight sciences, and/or stores clearance. That the Selection Board considered Mr. Cerullo's experience as a lecturer on the topic of structures and the duties associated with his former position as a specialist engineer as indicative of the requisite specialisation in aircraft structures is not, to me, a patently unreasonable decision. The consensus decision of this Selection Board in assessing the experience requirements is one that a reasonable person could have made based on the information that was before it, including the Selection Board Chairperson's personal knowledge of the candidate. There is no reason for me to interfere with its finding.
[8] The Appeal Board reached a similar conclusion with respect to the second issue before it.
[9] The Appeal Board dealt with the third and fourth issues before it together. In respect of those issues, it concluded in the following terms in paragraphs [24] and [25] of its reasons:
The appellants have maintained that the Selection Board improperly removed the knowledge criteria from the statement of qualifications. According to the department, it was within Mr. Graham's mandate, in his capacity of departmental manager, to make such an amendment. In the normal course of events, a change to the statement of qualifications should not be made once the competition has closed and the selection process in [sic] under way. However, the department stated that all candidates who had satisfied the education and experience criteria were given notice of the amendment and provided with the later version of the statement of qualifications. Therefore, I am satisfied that the statement of qualifications was properly amended by a competent authority and that the affected candidates were made aware of the change.
Once the knowledge criteria were removed from the statement of qualifications by the competent authority, the Selection Board was under no obligation to assess candidates against knowledge, nor to assess them against knowledge on the basis of relative merit. I am satisfied that this Selection Board has made its selections according to merit, based on its assessment of education, experience, abilities and personal suitability. [emphasis added]
THE ISSUES BEFORE THIS COURT
[10] The issues before this Court were essentially the same as those before the Appeal Board except, of course, the focus was on whether the Appeal Board itself, rather than the Selection Board, erred in concluding as it did. Before me, counsel essentially dealt with the first two issues that were before the Appeal Board together, and, as did the Appeal Board, with the second two issues that were before it together. In the brief analysis that follows, I will follow the precedent of the form of the representations before me.
THE RELEVANT PROVISIONS OF LAW
[11] The mandate of the Appeal Board in circumstances such as those here at issue derives from section 21 of the Public Service Employment Act[2]. That section reads as follows:
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 from within the Public Service, every unsuccessful candidate, in the case of selection by closed competition, or, in the case of selection without competition, every person whose opportunity for advancement, in the opinion of the Commission, has been prejudicially affected, may, within such period as the Commission prescribes, 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.
(2) The Commission, on being notified of the decision of the board on an inquiry into an appointment conducted pursuant to subsection (1), shall, in accordance with the decision,
(a) if the appointment has been made, confirm or revoke the appointment; or
(b) if the appointment has not been made, make or not make the appointment.
21. (1) Tout candidat non reçu à un concours interne ou, s'il n'y a pas eu concours, toute personne dont les chances d'avancement sont, selon la commission, amoindries par une nomination interne, déjà effective ou en instance, peut, dans le délai imparti par la Commission, en appeler devant un comité chargé par celle-ci 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.
(2) Après notification de la décision du comité, la Commission, en fonction de cette dernière:
(a) confirme ou révoque la nomination;
(b) procède ou non à la nomination.
[12] As earlier noted in quotations from the reasons of the Appeal Board, the role of the Appeal Board on an appeal under section 21 is essentially to ensure that the principle of selection according to merit is respected. That principle is reflected in section 10 of the Public Service Employment Act which reads as follows:
10. 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. 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.
ANALYSIS
[13] On the first two issues that were before the Appeal Board, I am satisfied that the Appeal Board demonstrated appropriate and not excessive deference to the conclusions of the Selection Board, particularly where the selection, as here, was made by an Appeal Board composed of technically qualified persons in relation to a highly specialized and technical area of employment. Against a standard of review of patent unreasonableness, I am satisfied that the conclusions of the Appeal Board on the first two issues were open to it and do not warrant interference by this Court.
[14] But the standard of review of a decision of an Appeal Board is not universally at such a high level. In Barbeau v. Canada (Attorney General)[3], my colleague Justice Blais wrote at paragraph [18] of his reasons:
The Federal Court of Appeal has confirmed that the Appeal Board does not possess sufficient expertise in interpreting the [Public Service Employment] Act so as to warrant the deference of the Court except in particular circumstances. Consequently, errors of law, errors of jurisdiction, and the requirements of the merit principle which raise an issue of law, are all subject to review on the standard of correctness. ...
For these propositions, Justice Blais cited Boucher v. Canada (Attorney General)[4] and Buttar v. Canada (Attorney General)[5].
[15] Against the standard of review of correctness, I find that the Appeal Board erred in a reviewable manner in its decision with regard to the third and fourth issues, that is to say the deletion of the knowledge elements from the statement of qualifications.
[16] In Tiefenbrunner v. Canada (Attorney General)[6], Justice Hugessen, for the Court, wrote:
It is clear from the materials that both the job description ... and the statement of qualifications ... contain significant knowledge requirements. It is equally clear that the Selection (or "Promotion") Board, did not consider the knowledge factor: its report says in terms:
"The knowledge factor has not been considered in this promotion process"
...
Notwithstanding this, the Appeal Board said:
I have been persuaded by the Department's explanations that the knowledge factor was taken into account and, because of the special circumstances, did not warrant a formal method of assessment. Many of the tasks require knowledge that will have to be learnt in the field. Other tasks require knowledge that CR-04s already possess. Since all the candidates have been CR-04s for a rather long time, I believe that, under these circumstances, it would have been superfluous to have assessed this factor. Thus, I cannot agree with the appellants representative when he suggests that the Department ignored the demands of the position.
...
If, as suggested by respondent's counsel, the first quoted phrase is meant as a finding that knowledge was in fact assessed, it is perverse. If instead it is taken at its face value as stating that knowledge was simply considered but not assessed, it is clear that the Appeal Board erred in law. Given the duties and statement of qualifications for these positions it was the clear duty of the Selection Board to assess knowledge and to do so in a way that permitted an assessment of the candidates' relative merit: ... [citations omitted]
[17] In Boucher[7], Justice Strayer, for the Federal Court of Appeal, wrote at paragraph [8] of his reasons:
In accordance with this standard [correctness] 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 ... 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. ... [citations omitted, Tiefenbrunner is cited supra, note 6, emphasis added]
[18] In its reasons in this matter, the Appeal Board acknowledged, as earlier cited, that "in the normal course of events, a change to the statement of qualifications should not be made once the competition has closed and the selection process is under way". It nonetheless rationalized the deletion of the knowledge criteria in the circumstances of this case on the basis that it was assured that "...all candidates who had satisfied the education and experience criteria were given notice of the amendment and provided with the later version of the statement of qualifications". That is simply not good enough. As noted by Justice Strayer in the foregoing quotation from Boucher, the deletion of the knowledge criteria was unfair "...to those who might otherwise have applied but failed to do so because they recognized that they did not have all of the advertised qualifications". Notification of all of the participants in the competition simply fails to remedy unfairness to those who might otherwise have entered the competition but did not.
[19] Counsel for the respondents urged that, given the nature of the competition here at issue, no one else would have entered the competition in any event, certainly not by reason of the deletion of only the knowledge criteria when other criteria of a highly technical nature remained. He further urged that the knowledge criteria were removed by Mr. Graham in his capacity as an officer of the Department of National Defence and not in his capacity as Chairperson of the Selection Board.
[20] I reject the foregoing submissions. In relation to the first submission, there was no strong evidence before the Appeal Board to the effect that no one else would have applied if the competition had been reopened with the knowledge criteria deleted from the statement of qualifications. Similarly, there was no strong evidence before the Appeal Board that Mr. Graham was acting in his capacity as an officer of the Department of National Defence rather than as Chairperson of the Selection Board when he deleted the knowledge criteria.
[21] In Canada (Attorney General) v. Blashford[8], Justice Décary wrote at page 59:
There is no evidence, here, that the representatives of the Department who sat on the Selection Board were in reality acting on behalf of their department at the time they defined the criteria and it would need strong evidence, in my view, to rebut the presumption that members of a selection board established by the Commission are acting on behalf of the Commission and not on behalf of their own department when they define criteria that amount to additional qualifications.
[22] I am satisfied that precisely the same might be said of Mr. Graham when he deleted the knowledge criteria. As I have said, I am satisfied that there was no strong evidence to the contrary before the Appeal Board based on the record in this matter.
[23] While the foregoing quotation is less applicable with regard to the issue of whether any other person would have applied in the competition, I am satisfied that the reasoning of the foregoing quotation is equally applicable to that submission. It did not fall on the applicants herein to adduce evidence that others would have applied.
[24] In the result, I am satisfied that, against the standard of correctness, the Appeal Board erred in law in a manner that breached the merit principle when it found no reviewable error on the part of the Selection Board when it proceeded on the basis of a statement of qualifications from which the knowledge criteria had been deleted following the close of the competition.
CONCLUSION
[25] Based on the foregoing brief analysis, this application for judicial review will be allowed, the decision of the Appeal Board that is under review will be set aside and this matter will be remitted for rehearing and redetermination by a differently constituted panel of the Appeal Board.
[26] The applicants did not seek costs. There will be no order as to costs.
_____________________________
Judge
Ottawa, Ontario
January 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1177-01
STYLE OF CAUSE: Kenneth Langille and Malcolm Givens
v.
Attorney General of Canada (Department of National Defence) and Nino Cerullo
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 9, 2003
REASONS FOR ORDER OF The Honourable Mr. Justice Gibson
APPEARANCES:
Mr. Christopher Rootham FOR APPLICANTS
Mr. Geoffrey S. Lester FOR RESPONDENTS
SOLICITORS OF RECORD:
Nelligan O'Brien Payne LLP FOR APPLICANTS
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada
[1] (1994), 87 F.T.R. 66.
[2] R.S.C. 1985, c. P-33.
[3] [2002] F.C.J. No. 582, (online: QL)(T.D).
[4] [1998] F.C.J. No. 1557 (online: QL)(T.D.), affirmed on appeal, [2000] F.C.J. No. 86 (online: QL)(C.A.).
[5] [2000] F.C.J. No. 437 (online: QL)(C.A.)
[6] [1992] F.C.J. No. 1021, (online: QL)(C.A.).
[7] Supra, note 4.
[8] [1991] 2 F.C. 44 (C.A.).