Date: 20040326
Docket: T-805-03
Citation: 2004 FC 470
Ottawa, Ontario, March 26, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
MARTIN CRUICKSHANK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Six months after deciding that a job competition held by Industry Canada failed to respect the merit principle, the Investigator appointed by the Public Service Commission to review the competition process changed her mind. After receiving clarification from the Department as to the process that had been followed with respect toreference checks, the Investigator issued a second 'Investigation Case Report', wherein she concluded that the merit principle had been respected, and that, as a result, no corrective measures were required.
[2] Martin Cruickshank is the unsuccessful candidate whose complaint sparked the investigation. He now seeks to have the second report of the Investigator set aside, asserting that once the Investigator issued her initial report, she was functus officio insofar as the question of whether or not the merit principle had been respected was concerned. He also contends that even if the Investigator had the power to revisit her first report, her original conclusions remain valid, and should not have been affected by her new appreciation of the evidence.
Background
[3] In early 2001, Industry Canada held a competition for a Regional Competition Law Officer position in Toronto. Mr. Cruickshank applied for the position, along with some 128 other individuals. As he met the requirements listed in the Statement of Qualifications, Mr. Cruickshank was screened in, and was assessed on the 'knowledge' component of the competition. A written examination was then used to assess some of the 'abilities' qualifications. Along with 10 others, Mr. Cruickshank achieved a passing score in this phase of the competition. These candidates were then interviewed, in order to assess the remaining 'abilities' and 'personal suitability' qualifications.
[4] Mr. Cruickshank failed the 'abilities' component of the competition by three marks and was therefore not assessed further. At no time were any of his references checked in relation to Ability A5, that is, the ability to work as part of a team.
[5] After the results of the competition were made known, Mr. Cruickshank filed a complaint with the Public Service Commission. This complaint contained 15 separate allegations, including bias on the part of the Selection Board, improper marking and the improper changing of marks. In accordance with section 7 of the Public Service Employment Act, an investigator was appointed to determine whether the competition had been conducted in accordance with the merit principle.
[6] After completing her investigation, the Investigator released a report on October 16, 2002 (the first report). Although the Investigator rejected most of Mr. Cruickshank's allegations, she accepted his assertion that the Selection Board erred in its assessment of Ability A5.
[7] The operative portion of the Investigator's first report states:
... I find that the Selection Board made a fatal error in its evaluation of the candidates on ability A5, the ability to work effectively on a team.
The department indicated during the fact finding meeting and in its written submission ... that candidates were assessed on ability A5 on the basis of their responses to the question during the interview and that references were only requested for validation purposes. It is submitted that "if references were contacted, the impact on the awarded marks would be either no change or be negative" and that "if a reference provided information contrary to that of the candidate, this would have lowered the score of the candidate. On the other hand, if the reference's information confirmed that of the candidate, the score would remain". Therefore, the complainant's markwould not have changed even if the reference information (had the references been contacted) contradicted his poor performance during the interview.
I find this to have been contrary to merit. References were listed as an assessment tool for ability A5 on the scoring grid provided by the department and as such, in order to fairly and consistently assess all candidates, it was incumbent on the Selection Board to contact all of the candidates' references in this regard. Failure to do so resulted in an incomplete assessment. Furthermore, it was unfair and unreasonable for the selection board to consider only the negative aspects of any information provided by the references. By doing so it failed to consider all pertinent data before it and/or available to it.
It should be remembered that the complainant failed abilities by only three marks. Had his references been contacted and had their comments been properly considered it is plausible that the complainant might have received a higher score on ability A5 and thereby might have attained a passing score on abilities. Consequently, his personal suitability would have been assessed and the overall order of merit might have changed. For these reasons, I find that the Selection Board's actions were contrary to merit.
[8] The Investigator did not make any recommendations with respect to corrective measures at this time. Negotiations with respect to the appropriate remedial measures then took place between the parties and the Investigator over the ensuing months.
[9] At some point during these discussions, the Investigator became aware that none of the candidates' references had been contacted with respect to question A5. In March of 2003, she advised the parties that she had only just realized the implications that this had for the conclusions that she had reached in her first report. This report, she says, was premised on the assumption that Mr. Cruickshank had been treated differently than other candidates, insofar as consultation with his references was concerned.
[10] After receiving submissions from the parties, the Investigator then issued her revised report on April 16, 2003 (the second report), wherein she determined that her original finding had been based on the incorrect assumption that some candidates' references had been checked and that the references of others, including Mr. Cruickshank, had not been contacted. As it now appeared that all of the candidates had been treated equitably, the Investigator concluded that the merit principle had been respected, and, as a result, no corrective measures were required.
Issues
[11] There are two issues raised by this application:
1. Was the Investigator functus officio after rendering her first report, and thus without jurisdiction to reconsider that report in light of additional information?
2. Was the Investigator's second report consistent with the merit principle?
Was the Investigator functus officio after rendering her first report, and thus without jurisdictionto reconsider that report in light of additional information?
[12] The parties are in agreement that the questionof whether functus officio operated to prevent the Investigator from re-opening her investigation is a question of law, and as such should be reviewed against a standard of correctness. I agree. (See Abercrombie v. Canada (Attorney General), 185 F.T.R. 300.)
[13] Mr. Cruickshank argues that while many statutes grant the express power to a decision-maker to review, reconsider or revisit a decision, no such power is conferred on an investigator appointed pursuant to section 7 of the Public Service Employment Act. He further contends that although the Investigator still had to determine the issue of corrective measures, she had completed her examination of whether the merit principle had been respected in the competition, and had exhausted her jurisdiction in this regard. Having regard to all of the circumstances, including the need for finality, and the prejudice to Mr. Cruickshank if the conclusions of the original report were revisited, he submits that the doctrine of functus officio should operate to deprive the Investigator of the jurisdiction to reconsider the issue of whether or not the merit principle had been respected.
[14] The respondent submits that functus officio does not arise here as the Investigator's decision was not final, given that the issue of corrective measures remained outstanding. Further, even if the doctrine applies, it must be applied with flexibility. In the respondent's submission, the interests of justice require that the Investigator have the power to revisit her original conclusion. Given that the Investigator's conclusion was based upon a misapprehension of the evidence, it would not serve the interests of justice to force the respondent to implement corrective measures when there was nothing to correct.
[15] The doctrine of functus officio provides that once an adjudicator has done everything necessary to perfect her decision, she is barred from revisiting that decision, other than to correct clerical or other minor errors. The policy rationale underlying this doctrine is the need for finality in proceedings: Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at 861-2.
[16] As the Supreme Court noted in Chandler, this doctrine is not limited to judicial decisions, but can apply as well to decisions of administrative tribunals, although it may be necessary to apply it in a more flexible and less formalistic fashion in this context.
[17] While it may be necessary for there to be an express statutory power to reconsider decisions arrived at through an adjudicative process, the same cannot be said of decisions arrived at through more informal processes. (Nouranidoust v. Canada (Minister of Citizenship and Immigration), [2000] 1 F.C. 123, at para 24.) Indeed, there is some question as to whether the doctrine of functus officio even applies in the context of investigations. (See, for example, Mossman v. Assn. of Professional Engineers, [1994] A.J. No. 61. (C.A.))
[18] For the doctrine to be engaged, it is necessary that the decision in issue be final. In the context of judicial decision making, a decision may be described as final when "... it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete and certain ...". (G. Spencer Bower & A.K. Turner, The Doctrine of Res Judicata 2d. ed. (London: Butterworths, 1969) at 132, as cited in D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998).
[19] In cases where a decision-making process has several components, the doctrine of functus officio will only arise after all of the issues have been addressed. (Vatanabadi v. Canada (Minister of Employment and Immigration), 102 D.L.R. (4th) 433).
[20] In order to define the scope of the doctrine, it is necessary to perform a pragmatic and functional analysis. One must weigh the unfairness that will arise if the decision is reopened against the harm that may arise if it is not. It is also necessary to consider the nature of the statutory mandate of the decision-maker and the breadth of the discretion conferred, as well as the availability of other relief, such as a right of appeal. (See Brown and Evans, at pp. 12-90.)
[21] With this understanding of the relevant principles, I turn now to the application of these principles to the facts before me. In this case, the Investigator appointed by the Public Service Commission was not performing an adjudicative function, but instead was carrying out an investigation, making findings of fact and recommendations as to what, if any, corrective measures were required.
[22] The completion of an investigation would not result in a binding decision. Rather, the ultimate authority in these matters vests not with the Investigator, but with the Public Service Commission itself. In cases where an investigator is not satisfied with a departmental response to the findings of an investigation, the Investigator reports the matter to the Commission (Public Service Employment Act, section 34.5). The Commission is not obliged to take any specific course of action upon receipt of a report from an investigator. Indeed, section 7.5 of the Public Service Employment Act uses permissive language, specifying that the Commission may order the deputy head of the department in question to take such corrective action as may be necessary.
[23] I am not persuaded that the doctrine of functus officio has any application to the sort of informal fact-finding exercise in issue here. As a consequence, the Investigator was entitled to reconsider the findings contained in her original report.
[24] In the event that I am mistaken in this conclusion, and the doctrine does apply, I am satisfied that the Investigator had not completed her task, and had not rendered a final decision. Further, the investigatory process in issue here calls for a high degree of flexibility in the application of the doctrine. There would clearly be prejudice to the department in terms of delay and wasted resources if it were required to implement measures to correct a situation that may not call for correction. While Mr. Cruickshank asserts that he would suffer prejudice if the Investigator were permitted to revisit her original conclusion, he has not pointed to any specific prejudice that will accrue to him, beyond the fact that the revised report was not in his favour. Further, the nature of the statutory mandate conferred on the Investigator, and the absence of a right to a full appeal all militate in favour of applying the doctrine with considerable flexibility, and allowing the Investigator to revisit her original conclusions.
[25] As a result, I am satisfied that the Investigator was entitled to reconsider visit the conclusions of her original report after realizing that the report was based upon a misapprehension of the facts.
Was the Investigator's second report consistent with the merit principle?
[26] After releasing her initial report, the Investigator realized that Mr. Cruickshank had not been treated differently from other candidates, and that reference checks had not been used to assess the ability of any of the candidates to work as part of a team. Mr. Cruickshank says that this new information should not have had any impact on the investigator's conclusion that the merit principle had not been respected in the competition.
[27] According to Mr. Cruickshank, the original report was not based solely on the premise that reference checks had been used in an inconsistent manner, as is implied by the second report. In her first report, the Investigator found that reference checks were intended to be part of the assessment process, and would have provided additional information regarding the assessment of all of the candidates. The Investigator noted that the failure to contact references "resulted in an incomplete assessment". This finding stands, Mr. Cruickshank says, regardless of whether the Board failed to contact the references of some or all of the candidates. Having concluded that the Selection Board should have contacted the references of all of the candidates, it was not open to the Board to change that view.
[28] The respondent submits that the original report of the Investigator was clearly premised on the understanding that there had been a selective use of reference checks in the assessment of the various candidates' ability to work as part of a team, and that all candidates had not been treated in a similar fashion.
[29] Citing the decision in Ratelle v. Canada (Public Service CommissionAppeals Branch), (1975), 12 N.R. 85 (F.C.A.), the respondent submits that it is up to the Selection Board to decide which tools it will use in order to assess participants in a competition. Conceding that it would have been wrong for the Selection Board to only check the references of some of the candidates, the respondent says that it was entirely within the discretion of the Selection Board to decide that it was not, in fact, necessary to carry out reference checks as part of the assessment process, as long as that decision was implemented in a uniform manner.
[30] Before addressing this issue, it is necessary to determine the appropriate standard of review. Mr. Cruickshank submits that the question of whether the Investigator's second report was consistent with the merit principle is a question of law, and should thus be reviewed against a standard of correctness. In contrast, the respondent submits that it is a question of mixed fact and law, and that the appropriate standard is reasonableness simpliciter.
[31] In Hains v. Canada (Attorney General) [2001] F.C.J. No. 1238, the Court was called upon to determine the standard of review to be used in connection with a decision of the Public Service Commission Appeal Board. The Court held that the PSCAB's factual findings and its application of the merit principle are to be reviewed against a standard of reasonableness simpliciter.
[32] In this case, I am dealing with the report of an investigator appointed ad hoc under section 7 of the Public Service Employment Act. However, having regard to the four factors relevant to the pragmatic and functional approach advocated in decisions such as Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, I am satisfied that the same standard of review is applicable here. As a result, I will approach my analysis using the standard of reasonableness simpliciter.
[33] The starting point for this analysis is subsection 10 (2) of the Public Service Employment Act, which provides that merit may be measured against standards of competence established by the Public Service Commission, rather than as measured against the competence of other people.
[34] Pursuant to its delegated authority, it is up to the Selection Board to identify the appropriate tools for identifying the most meritorious candidates.
[35] Having initially identified reference checks as a tool that would be used to assess Ability A5, it was surely within the discretion of the Selection Board to reconsider that decision, where, as here, it did so before contacting any of the candidate's referees. In this regard, this case may be distinguished from the decision of the Federal Court of Appealin Mackintosh v. Canada (Public Service CommissionAppeal Board), [1990] F.C.J. No. 834, where the Court held that a Selection Board was in error in eliminating a question from a competition - after all of the candidates had already answered the question.
[36] As to whether the misapprehended fact had any material effect on the Investigator's initial conclusion that the merit principle had not been respected, it is helpful to consider the key portion of the first report, where the Investigator said:
References were listed as an assessment tool for ability A5 on the scoring grid provided by the department and as such, in order to fairly and consistently assess all candidates, it was incumbent on the Selection Board to contact all of the candidates'references in this regard. Failure to do so resulted in an incomplete assessment. Furthermore, it was unfair and unreasonable for the selection board to consider only the negative aspects of any information provided by the references. By doing so it failed to consider all pertinent data before it and/or available to it. [my emphasis]
[37] It is clear from this portion of the report that the Investigator's real concern was that candidates had not been consistently assessed. Indeed, the first report observes that in order to properly assess the candidates, it was necessary to contact all of the candidates' references.
[38] Once the Investigator realized that all of the candidates had been assessed in a consistent manner, her initial concerns about the selection process were allayed. Hence, I find that it was reasonable for her to conclude, in her second report, that the merit principle had been respected.
Conclusion
[39] For these reasons, Mr. Cruickshank's application should be dismissed. However, it is clear that Mr. Cruickshank has been put through a great deal of aggravation and expense as a result of the failure of the Investigator to properly understand what went on in the competition. Although he has not succeeded in persuading me that the Investigator's second report should be set aside, in the circumstances I make no order as to costs.
O R D E R
THIS COURT ORDERS THAT:
The application is dismissed, without costs.
"Anne L. Mactavish" Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-805-03
STYLE OF CAUSE:
MARTIN CRUICKSHANK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 24, 2004
REASONS FOR ORDER AND ORDER : The Honourable Madam Justice Mactavish
DATED: March 26, 2004
APPEARANCES:
Mr. James Cameron FOR PLAINTIFF / APPLICANT
Ms. Anne M. Turley FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Raven, Allen, Cameron & Ballantyne FOR PLAINTIFF/APPLICANT
Ottawa, Ontario
Department of Justice FOR DEFENDANT/
Ottawa, Ontario RESPONDENT