Date: 20000202
Docket: T-269-99
BETWEEN:
CLAIRE GRIFFITHS AND GINA GOAD
Applicants
-and-
ATTORNEY GENERAL OF CANADA, SEAN SMITH, STEVE HEWETT,
CRAIG KENNEDY, MICHAEL GALAMBOS, BRUCE MACHACYNSKI,
JACKIE MACK, SHAWN SLACK, AMY MACINNES, and ANGELA RURAK
Respondents
REASONS FOR ORDER
CAMPBELL J.:
[1] The issue for determination on this application for judicial review is whether either of the two Public Service Commission Appeal Boards reviewing the selection process being challenged by Claire Griffiths and Gina Goad (the "Applicants"), decided, as required, that the candidates that filled the positions were selected according to the merit principle.
[2] The standard required of an appeal board acting under the Public Service Employment Act (the "PSEA") is clearly stated by Décary J. in the 1993 Federal Court of Appeal decision of Leckie v. Canada1:
| In order to succeed under section 21 in establishing that the merit principle had |
| been offended, the applicants had to convince the Appeal Board that the method |
| of selection chosen was "such that there could be some doubt as to its fitness to |
| determine the merit of candidates" i.e. as to its fitness to determine whether "the |
| best persons possible" were found. An appeal board's main duty being to satisfy |
| itself that the best persons possible were appointed, it goes without saying that |
| an appellant, before even embarking on a challenge to the method of selection |
| chosen, should at least allege (and eventually demonstrate) that there was a real |
| possibility or likelihood that the best persons possible were not appointed. |
| [Emphasis added] |
A. The facts2
1. The competition
[3] A selection process was conducted to chose nine term employees for re-appointment to the position of Customs Officer (PM-02) with Revenue Canada-Customs (the "Department") at Port of Landsdowne, Ontario.
[4] The Applicants' qualifications and personal suitability were evaluated on the basis of existing scores on the Customs Inspector Test, and by using a five-point rating scale. The only assessment tool used was the Selection Board's knowledge of each candidates' performance. The final results were hand-written on score sheets.
[5] Selections were made for the term re-appointments, which did not include the Applicants.
2. The first Appeal Board decision
[6] The Applicants appealed against the selections pursuant to s. 21(1) of the PSEA. At the hearing before the first Appeal Board on May 27, 1998, the Applicants, through their representative, made eight allegations.
[7] On June 30, 1998, Appeal Board Chairperson Larivière-Caw upheld the appeal, and in doing so, concluded that knowledge of the legislation administered by the Department was not properly assessed. The Chairperson also concluded that the consolidated score sheets prepared by the Public Service Commission (the "PSC") lacked sufficient clarity to be used to determine the candidates' personal suitability, a situation she described as neither transparent nor fair.
3. The corrective measures
[8] In a letter dated July 27, 1998, the PSC directed the Department to take specific action to correct the defects identified by the first Appeal Board.
[9] In particular, the Department was directed to undertake the following corrective measures:
| 1. provide explanations on how and why candidate marks were awarded under Personal Suitability; |
| 2. with reference to the factor "Knowledge of Acts and Regulations administered by Customs", identify more precisely those acts and regulations against which candidates will be assessed and advise the candidates accordingly; |
| 3. re-assess the candidates under the factor "Knowledge of Acts and Regulations administered by Customs"; |
| 4. issue a new Eligibility List and grant Appeal rights to the candidates; |
| 5. confirm in writing to the undersigned [Brenda Marchbank] the |
| results of these corrective measures3. |
[10] The Department responded to the first corrective measure by letter dated September 29, 1998, which contained explanations as to how and why the Applicants' marks were awarded under personal suitability, together with an attachment outlining the rating system. The Department fulfilled the second corrective measure by conducting a written examination between the months of August and September 1998.
[11] However, the Department notified the Applicants, by letter dated September 29, 1998, that the re-evaluation had not changed the rank order of the candidates. The Applicants were not selected for the term re-appointments with the Department.
4. The decision under review
[12] The Applicants appealed pursuant to s. 21(4) of the PSEA, against the corrective measures taken by the PSC and the resulting term appointments. At the hearing before the Appeal Board on February 17 and 18, 1999, the Applicants, through their representative, presented two allegations which were as follows:
| 1. that the corrective measures imposed by the Public Service Commission on July 27, 1998 did not result in a selection for appointments according to merit. |
| 2. that the Selection Board failed to properly implement the first corrective measure imposed by the PSC in that the letters of explanation as to how and why marks were awarded under the 'personal suitability' heading failed to demonstrate that the selection process was transparent and fair and according to relative merit4. |
[13] On February 17, 1999, Appeal Board Chairperson Brown heard submissions from the Applicants' representative and the Department's representative respecting the first corrective measure. Since the Chairperson was not satisfied that the Department had fully complied with the PSC's directions, the hearing was adjourned to the next day to allow the Department an opportunity to do so.
[14] On February 18, 1999, the Departmental representative produced a more detailed explanation of how and why marks were awarded to each candidate, and entered into evidence a document entitled "Explanations as to how and why marks were awarded under personal suitability".
[15] The Appeal Board Chairperson heard the Applicants' allegations, and following submissions from both parties, dismissed the appeals. In the decision of February 26, 1999, the following reasons were given:
| After careful consideration of both the evidence and argument, I am not of the view that my intervention is warranted with respect of these appeals. What follows are the reasons for that determination. |
| Firstly, my jurisdiction in this appeal is limited to the determination of whether the consequence of the corrective action taken by the department in response to the upheld appeal decision resulted in appointments made in accordance with merit. In the instant case, in order to ensure that the action taken met that test, it was necessary to review the material provided by the department at the first hearing with that which was prepared pursuant to subsection 21(3) of the Act and the direction received by the Public Service Commission. Having reviewed the grounds on which the appeal was allowed, it is clear that the Appeal Board had concerns with the lack of clarity as well as the lack of supporting examples provided by the Selection Board in the assessment of candidates under Personal Suitability. Further, the Appeal Board expressed the need for the Selection Board to "provide clear explanations of how and why marks were awarded to each candidate" but did not indicate that the assessments in and of themselves were flawed, rather that the lack of clarity of information was "neither transparent or fair". |
| In my opinion, the actions taken by the Selection Board in response to the direction received by the Public Service Commission pursuant to 21(3) of the Act sufficiently addresses those defects identified in the upheld appeal decision dated June 30, 1998. As the comments made in that decision related solely to the explanations of how and why marks were awarded under Personal Suitability, I can find no grounds on which to intervene. |
| Accordingly, the appeal of C. Griffiths and G. Goad are dismissed. |
| [Emphasis added]5 |
[16] The present judicial review arising from these reasons was commenced by Notice of Application dated 1 April 1999.
B. Analysis
[17] With respect to addressing the issue as first stated above, two important admissions have been made by Counsel for the Respondent: it is admitted that, considering the absence of clear explanations for the selection decisions reached, the first Appeal Board could not decide whether or not merit had been respected; and it is admitted that the second Appeal Board, which rendered the decision under review, was required, having regard to the corrective measures directed, to take a fresh look at whether or not the merit principle had been respected in the making of the appointments.
[18] Given the first admission, I find that the second Appeal Board is in clear error in stating in its decision that the first Appeal Board "did not indicate that the assessments in and of themselves were flawed". As a result of this error, it is apparent that the second Appeal Board proceeded on the belief that the first Appeal Board had already decided that the selection process was conducted according to merit. As a result, I find that the second Appeal Board did not direct its mind to concluding whether the merit principle had been applied in the selection process, which, it is agreed, it is bound to do.
[19] Due to the error exposed, I find that, in the present case, there has not been a decision reached as to whether the merit principle was applied in the selection process conducted. Given the duty on the second Appeal Board to satisfy itself that the best persons possible were appointed, I find that the failure to do so constitutes a reviewable error in law.
[20] Accordingly, I set the decision of the second Appeal Board aside, and refer the matter back to a differently constituted panel for redetermination, with the specific direction that it decide whether the appointments in the present case were made on the basis of merit.
[21] As the Applicants are successful in this application, I award costs to them jointly against the Attorney General of Canada.
OTTAWA, Ontario
February 2, 2000
Judge
__________________1 Leckie v. Canada, [1993] 2 C.F. at 481.
2 The Respondent's Memorandum of Fact and Law provides a convenient precis from which the following factual outline is adapted. (Respondent's Record, vol. 1, pp. 1-7).
3 Applicant's Application Record, Vol. 1, tab 3, pp. 48 - 49.
4 Applicant's Application Record, Vol. 1, tab 3, p. 121.
5 Applicant's Application Record, Vol. 1, tab 3, pp. 14 - 23.