Date: 20031114
Docket: T-943-02
Citation: 2003 FC 1344
OTTAWA, ONTARIO, FRIDAY, THIS 14TH DAY OF NOVEMBER, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JAMES MERCER AND LINDA WILCOX
Applicants
- and -
ATTORNEY GENERAL OF CANADA, ANNETTE PEACH
and CATHY GILLES-BARRON
Respondents
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] In 2001, Human Resources Development Canada ("HRDC") advertised a competition to fill the positions of Investigation and Control Officer (PM-02) in Harbour Grace, Newfoundland. The Applicants are federal public servants who applied unsuccessfully for the advertised positions. The Selection Board for the competition carried out its assessment of the candidates on the basis that a candidate was not required to "pass" each of the job qualifications separately. The Board undertook a global assessment in each of the three categories of "Knowledge", "Abilities" and "Personal Suitability". That is, the Board combined the scores for each of the qualifications under each of the categories and measured the candidates against a global score for each of the three broad categories.
[2] The Applicants appealed the appointments of the successful candidates to the Public Service Commission Appeal Board (the "Appeal Board") under section 21(1) of the Public Service Employment Act (the "Act").
[3] By decision dated May 16, 2002, the Appeal Board dismissed the Applicants' allegation. The Applicants seek judicial review of that decision.
Issues
[4] The Applicants and the Attorney General of Canada, one of the Respondents, agree that the only issue before this Court is whether the Appeal Board correctly decided that the Selection Board respected the merit principle during the assessment process. In the particular circumstances of this case, the issue is whether the Selection Board erred in taking a global approach to the assessment of qualifications.
Background
[5] In this case, a panel of three employees of HRDC, known as the Selection Board, was appointed to assess the candidates and select, rank and appoint the best qualified individual for the position. The candidates were assessed against the eleven qualifications contained in the Statement of Qualifications prepared by the HRDC. These qualifications related to Knowledge (2), Abilities (4) and Personal Suitability (5). To qualify, candidates were required to obtain an overall score of 75/125 (60%) in the "knowledge" category, 168/240 (70%) in the "Abilities" category and 140/200 (70%) in the "Personal Suitability" category based on the total of their scores on the individual qualifications.
[6] Unfortunately, neither of the Applicants were deemed eligible. The Respondents, Annette Peach and Cathy Gilles-Barron, obtained the requisite scores and were placed on the eligibility list in order of merit.
Standard of Review
[7] As agreed by the parties, I have applied a standard of correctness to his decision of the Appeal Board.
Analysis
[8] This case was heard at the same sitting of this Court as Carty et al v. Attorney General of Canada, 2003 FC 1338; Docket: T-552-02, since the issue in both cases is identical. In Carty, supra, I determined that the Appeal Board was not correct in its conclusion. I see no different facts in this case that would lead me to a different conclusion. Here, as in Carty, the decision of Boucher v. Attorney General of Canada [2000] 252 N.R. 186 (F.C.A.) and Nelson et al v. Canada (Attorney General) et al [2001] 204 F.T.R. 287 (F.C.) are determinative of this issue. For the same reasons as expressed in that decision, I would allow this application for judicial review.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is allowed with costs to the Applicants.
2. The decision rendered May 16, 2002 is set aside and the matter is referred back to a differently constituted Appeal Board to be dealt with in accordance with the reasons of this Court.
"Judith A. Snider"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-943-02
STYLE OF CAUSE: JAMES MERCER et al v.
ATTORNEY GENERAL OF CANADA et al
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: WEDNESDAY, NOVEMBER 12, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MADAM JUSTICE SNIDER
DATED: FRIDAY, NOVEMBER 14, 2003
APPEARANCES:
Ms. Jacquie de Aguayo FOR APPLICANTS
Mr. J. Sanderson Graham FOR RESPONDENTS
SOLICITORS OF RECORD:
PUBLIC SERVICE ALLIANCE OF CANADA FOR APPLICANTS
OTTAWA, ONTARIO
MORRIS ROSENBERG FOR RESPONDENTS
DEPUTY ATTORNEY GENERAL OF CANADA
OTTAWA, ONTARIO