Date: 20040329
Docket: T-790-03
Citation: 2004 FC 471
Ottawa, Ontario, March 29, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
REX GO
Applicant
and
ATTORNEY GENERAL OF CANADA and NIRMAL GILL
Respondents
REASONS FOR ORDER AND ORDER
[1] This application raises the question of whether an individual who successfully challenges the appointment of another person in an appeal before the Public Service Commission Appeal Board (PSCAB), can judicially review aspects of the PSCAB decision that were not in his favour. Also in issue is the marking scheme used to assess the candidates' knowledge.
Background
[2] Along with 26 other candidates, Rex Go competed for the position of Operations Service Manager (PM-05) at the Immigration and Refugee Board's Vancouver office. Fourteen candidates were assessed against the Knowledge qualification by way of a written examination. After failing to achieve a passing score on the exam, Mr. Go was eliminated from the competition.
[3] Four candidates passed the examination. These individuals were then interviewed in order to assess their abilities. One candidate successfully completed this stage of the selection process. This individual was ultimately proposed for appointment.
[4] Mr. Go appealed the proposed appointment of the successful candidate to the PSCAB, pursuant to section 21 of the Public Service Employment Act (PSEA). His appeal cited a number of alleged deficiencies in the competition process, including the failure of the Selection Board to assess candidates' written communication skills, and what Mr. Go says were problems with the marking scheme used to assess candidates' knowledge.
[5] The PSCAB did not accept most of the arguments advanced by Mr. Go. With respect to the marking scheme, the PSCAB found that if candidates were denied marks on the knowledge examination for failing to cite source material, this marking scheme was not applied consistently. It was difficult, if not impossible, to discern whether any failure on the part of either Mr. Go or the successful candidate to cite a source played any role in the mark that they received. Further, it was not clear when candidates were expected to cite source material, and why they were or were not expected to cite sources for their answers.
[6] Having made these findings, the PSCAB then proceeded to review the answers provided by both Mr. Go and by the successful candidate. The Board determined what it thought would be a reasonable rating criteria, and re-calculated the marks for each of these two candidates. At no time did the PSCAB consider the effect that the irregularity in the marking system used by the Selection Board could have had on the marks of the other 12 candidates.
[7] The PSCAB accepted Mr. Go's submissions in relation to another of his grounds of appeal - that is that the Selection Board erred in failing to assess the ability of the successful candidate to communicate in writing. As a result, Mr. Go's appeal was allowed.
[8] Mr. Go now seeks judicial review of the PSCAB's decision. He asserts that the PSCAB erred in law, and exceeded its jurisdiction, in the way that it dealt with the flaws in the marking system used by the Selection Board to assess the knowledge portion of the competition.
Preliminary Issue
[9] As a preliminary matter, the respondent contends that Mr. Go is seeking to review the reasons of the PSCAB, as opposed to its decision. In the respondent's submission, this is not the function of judicial review, and, accordingly, this Court is without jurisdiction to entertain Mr. Go's application.
[10] The respondent noted that in G.K.O. Engineering v. Canada, 2001 FCA 73, the Federal Court of Appeal held that what is in issue on a judicial review is the decision in question, and not the reasons for that decision. Similarly, in Rogerville v. Canada (Public Service Commission Appeal Board), 2001 FCA No. 142, the Court of Appeal held that judicial review may not lie from the reasons of an inferior tribunal, independent of the decision itself.
[11] In this case, the respondent says, the decision of the PSCAB was favorable to Mr. Go. What he is now asking this Court to review is not the decision of the PSCAB, but the reasons for that decision. According to the respondent, this is not an appropriate subject for judicial review.
[12] Mr. Go submits that it is necessary to look at substance over form. The purpose of an appeal under section 21 of the PSEA is to ensure that the merit principle is observed in Public Service hiring. Once an error is identified by the Board, the matter is remitted to the Public Service Commission, to determine what measures are required to correct the situation. In this case, Mr. Go's appeal identified a number of different errors, each of which could constitute a separate violation of the PSEA. Depending on the nature of the error, different corrective measures could be required.
[13] If the respondent is correct, Mr. Go says, then as long as the PSCAB upholds one of an appellant's arguments, the Board can err with impunity in relation to all of the other arguments, and nothing could be done about it.
Analysis
[14] The "decision" of the PSCAB simply states "The appeal is allowed". Given that he was apparently successful in his appeal, it may be of assistance, at the outset, to explain why Mr. Go is seeking to challenge the PSCAB's decision.
[15] The PSCAB upheld Mr. Go's allegation that the Selection Board failed to assess candidates' written communication skills. This was a part of the 'Abilities' component of the competition. Only four candidates participated in the Abilities component of the competition. Mr. Go was not one of the four. As a result, his success in relation to this aspect of the competition is of no assistance to Mr. Go in his efforts to obtain the position.
[16] The PSCAB also identified a problem in the way that the Selection Board assessed the candidates in relation to the marking of the knowledge examination. However, the PSCAB decided that re-marking these examinations would have no effect on the result of the competition. Fourteen people, including Mr. Go, wrote the examination. An error with respect to the PSCAB's conclusion on this aspect of the competition could, therefore, have a direct bearing on Mr. Go's candidacy.
[17] I have carefully considered both the G.K.O. and Rogerville decisions. In my view, both decisions may be distinguished on their facts. In each case, what the applicant was seeking to review was the reasons of the inferior tribunal, as opposed to the decision. That is not the case here.
[18] Although it is the decision of an inferior tribunal that is in issue on an application for judicial review, it may be necessary to read the reasons of the tribunal in order to properly appreciate the scope of that decision. In this case, a review of the reasons of the PSCAB discloses that, notwithstanding the PSCAB's statement that the appeal was allowed, in reality, Mr. Go's appeal was only partly successful. What he is now seeking to judicially review is not the reasons of the PSCAB, but one of the issues that was before the Board on which he was not successful. In my view, this is properly the subject of judicial review.
[19] It is therefore necessary to consider the merits of Mr. Go's application.
Did the PSCAB Err in Applying What it Considered to Be an Appropriate Marking Scheme, and Re-marking the Examinations of Mr. Go and the Successful Candidate?
[20] Mr. Go submits that selection according to merit is the dominant objective of the PSEA. It is the Selection Board, acting as the delegate of the Public Service Commission, that decides what the appropriate method for assessing the candidates should be. It is the duty of the Selection Board to assess and rank candidates in accordance with the merit principle.
[21] In this case, Mr. Go says that the PSCAB was correct in its finding that the Selection Board erred in penalizing candidates for failing to cite source material, when no such material was asked for in the examination questions. Where the Board erred, Mr. Go says, is in purporting to re-mark the exams of Mr. Go and the successful candidate, in accordance with a scheme of the Board's own devising. Once the error was identified by the PSCAB, it was incumbent on the Board to refer the matter to the Commission in order for the Commission to identify the necessary corrective measures. Further, by only re-marking two of the fourteen examinations, the PSCAB failed to consider the impact that the flawed marking system used by the Selection Board had on the results of the other twelve candidates and the overall order of merit. In these circumstances, it cannot be said that the merit principle was respected.
[22] The respondent does not take issue with the PSCAB's finding that the Selection Board's marking scheme was obviously unreasonable. Having come to this conclusion, however, the respondent says that it was appropriate for the Board to determine whether the Selection Board's error resulted in a violation of the merit principle. As such, the Selection Board was entitled to examine the effect that the error had on the results of Mr. Go and the successful candidate. Citing the decision of Justice Rothstein in Scarrizzi v. Marinaki, (1994), 87 F.T.R. 66, the respondent contends that it was sufficient for the PSCAB to limit its review to these two individuals. There was no obligation on the Board, the respondent says, to consider the impact that the marking error had on the other candidates.
[23] Further, the respondent says that the examination papers for the other candidates would not have been before the PSCAB, and thus the Board was not in a position to determine the effect that the error may have had on these candidates.
[24] In Caldwell v. Canada (Public Service Commission), (1978), 25 N.R. 458, the Federal Court of Appeal held that the purpose of an appeal under section 21 of the PSEA is to ensure that the merit principle is observed. It is incumbent on the PSCAB to ensure that any irregularity in the competition process did not influence the selection of the most meritorious candidate.
[25] Scarrizzi does not stand for the proposition that it is not necessary to examine the effect that an error may have had on all of the candidates in a competition. Scarrizzi simply says that it may not be necessary for the Board to remark all of the other candidates' exams where, for example, there has been an arithmetical error in the calculation of one candidate's results. This is clearly not such a situation.
[26] I do not see how it could be said that the Selection Board's error did not result in a violation of the merit principle without considering the effect that the error had on the results of all fourteen candidates, and not just on the results of Mr. Go and the successful candidate. It may well be that a candidate who was excluded from the competition after failing the examination could have passed, had the examination been marked properly. We have no way of knowing how that candidate would have fared on the abilities and personal suitability components of the examination, nor can we know where they would have ended up in the overall order of merit. Without answers to these questions it cannot be said that the flaw in the marking system had no effect on whether the merit principle was respected in the competition.
[27] Finally, with respect to the respondent's contention that the Board was not in a position to determine the effect that the error in the marking scheme had on the other twelve candidates, I note that in an appeal to the PSCAB, the onus is on the Selection Board to establish that the selection was made according to merit. (See Field v. Canada (Attorney General), (1995), 93 F.T.R. 158.) If the PSCAB was not in a position to determine whether an error in a marking scheme resulted in a failure to adhere to the merit principle, it was incumbent on the Board to allow the appeal.
Conclusion
[28] Whether I apply the standard of review of correctness, as suggested by Mr. Go, or of reasonableness simpliciter, as the respondent would have me do, I am satisfied that the decision of the PSCAB cannot stand. Accordingly, Mr. Go's application is allowed, with costs.
O R D E R
THIS COURT ORDERS THAT:
The application is allowed, with costs.
"Anne L. Mactavish"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-790-03
STYLE OF CAUSE: Rex Go v. Attorney General of Canada and Nirmal Gill
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 22, 2004
REASONS FOR ORDER AND ORDER: Madam Justice Mactavish
APPEARANCES:
Ms. Jacquie de Aguayo FOR APPLICANT
Ms. Susanne Pereira FOR RESPONDENTS
SOLICITORS OF RECORD:
Public Service Alliance of Canada FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENTS