Date: 20041007
Docket: T-1243-03
OTTAWA, Ontario, October 7th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
DOMENIC IERULLO and
JIM MOLOS and PATTI CRUICKSHANK
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA, GENEVIEVE POIRE,
SHELLEY CURLEW, KELAN TON, STEPHANE DORGE,
AMY REIER, TOM SCOTT, KEVIN McCOLLUM,
KATHLEEN McCOY, STEPHAN AHAD AND JORDAN LEE
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Public Service Commission Appeal Board dated June 11, 2003 dismissing the applicants' appeals in regard to a competition under the Public Service Employment Act, R.S.C. 1985, c. P-33 ("PSEA").
FACTS
[2] The applicant Domenic Ierullo alleged that he failed the written examination component of the competition because of a computer malfunction, namely, the "spell-check" program malfunctioned because it was designed to verify spelling in French. As a result, Mr. Ierullo claimed that he wasted time during the examination trying to correct and combat formatting errors caused by this malfunction. Mr. Ierullo thought that the computer difficulty was of his own making, and he did not inform the exam invigilator of the malfunction during the examination, but he testified that he informed the invigilator at the end of the examination when specifically asked whether his spell-check program was working.
[3] In addition, all three applicants claim that the Appeal Board erred by failing to consider another computer malfunction which came to their attention during the hearing. Specifically, they allege that they were not able to "cut and paste" reference documents into their answers, unlike some of the other candidates.
THE DECISION
[4] The Appeal Board dismissed the appeals. With respect to the spell-check malfunction, the Appeal Board found at paragraph 58:
(i) that the spell-check software of the appellant Ierullo was never fixed and Mr. Ierullo was not given an additional ten minutes at the end of his exam to correct the spelling, as other candidates were;
(ii) that the exam invigilator testified that the appellant Ierullo never notified her of any problems with his computer during or at the end of the exam, "which was not refuted by appellant Ierullo";
(iii) the fact that the appellant Ierullo did not advise that his computer was malfunctioning explains why his computer was not fixed during the exam; and
(iv) the exam supervisors cannot be blamed for failing to resolve a problem that they did not know existed. Moreover, the appellant Ierullo had the burden of clearly and unequivocally bringing this problem to the attention of the invigilator during the exam.
[5] At paragraph 59, the Appeal Board found that even if the appellant Ierullo had been given ten extra minutes at the end of his exam to verify his spelling, to make up for the spell-check malfunction, Mr. Ierullo would not have been able to obtain a pass mark given his low score on the examination.
[6] The other two applicants in this matter joined Mr. Ierullo in arguing that the Appeal Board erred in failing to consider the submission that they were unfairly disadvantaged because they were not able to "cut and paste" reference documents into their answers. The Appeal Board did not refer to this submission in its decision.
ISSUES
[7] The following three issues are raised in this case:
(i) did the Appeal Board make a patently unreasonable finding of fact that the applicant Ierullo did not refute the invigilator's allegation that Mr. Ierullo never notified her of any problems with his computer during or at the end of the exam and that this is the reason why Mr. Ierullo's computer was not fixed during the exam?
(ii) did the Appeal Board err by concluding that the computer problems encountered by Mr. Ierullo did not influence the results of the competition to his disadvantage?
(iii) did the Appeal Board err by not considering whether the computer malfunction with respect to the "cutting and pasting" of electronic reference documents disadvantaged the three applicants?
RELEVANT LEGISLATION
[8] The fundamental principle underlying the appointments to and from within the federal public service is the merit principle, which is contained in subsection (10)(1) of the PSEA:
| 10. (1) 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.
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10. (1) 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. |
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[9] Section 21 provides a mechanism for unsuccessful candidates to appeal an appointment. The relevant portions state:
| 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 by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, 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) Subject to subsection (3), the Commission, on being notified of the decision of a board established under subsection (1) or (1.1), 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. ... (3) Where a board established under subsection (1) or (1.1) determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect. (4) Where a person is appointed or is about to be appointed under this Act as a result of measures taken under subsection (3), an appeal may be taken under subsection (1) or (1.1) against that appointment only on the ground that the measures so taken did not result in a selection for appointment according to merit. |
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21. (1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle 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.
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(2) Sous réserve du paragraphe (3), la Commission, après avoir reçu avis de la décision du comité visé aux paragraphes (1) ou (1.1), doit en fonction de celle-ci_:
a) si la nomination a eu lieu, la confirmer ou la révoquer;
b) si la nomination n'a pas eu lieu, y procéder ou non. ...
(3) La Commission peut prendre toute mesure qu'elle juge indiquée pour remédier à toute irrégularité signalée par le comité relativement à la procédure de sélection.
(4) Une nomination, effective ou imminente, consécutive à une mesure visée au paragraphe (3) ne peut faire l'objet d'un appel conformément aux paragraphes (1) ou (1.1) qu'au motif que la mesure prise est contraire au principe de la sélection au mérite.
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ANALYSIS
Standard of Review
[10] The parties agree on the applicable standards of review for each of the issues.
Issue No. 1
Did the Appeal Board make a patently unreasonable finding of fact that the applicant Ierullo did not refute the invigilator's allegation that Mr. Ierullo never notified her of any problems with his computer during or at the end of the exam and that this is the reason why Mr. Ierullo's computer was not fixed during the exam?
[11] The transcript of the evidence proves that Mr. Ierullo testified that when asked by the invigilator at the end of the exam if he had experienced a problem with the spell-check program on his computer, he said to the invigilator that he did have computer problems in this regard. Accordingly, the Appeal Board made a patently unreasonable finding of fact when it concluded that Mr. Ierullo did not refute the invigilator's allegations.
[12] Moreover, the Appeal Board made a patently unreasonable finding of fact when it concluded that Mr. Ierullo's failure to notify the invigilator of the problem "explained why Mr. Ierullo's computer was not fixed during the exam". The evidence is clear that Mr. Ierullo thought the computer difficulty was of his own making and not because of a program malfunction. In addition, Mr. Ierullo testified that he did not see the exam invigilator during the exam because he was in a separate room from the other candidates. Accordingly, the Appeal Board erred in finding that Mr. Ierullo must bear responsibility for the computer malfunction because he should have brought the computer malfunction to the attention of the exam invigilator.
[13] These erroneous findings of fact by the Appeal Board do not, by themselves, warrant allowing this application. However, they probably influenced the attitude of the Appeal Board with respect to whether Mr. Ierullo might have obtained a pass mark on the exam, but for the computer malfunction. That is the subject of the next ground of this application.
Issue No. 2
Did the Appeal Board err by concluding that the computer problems encountered by Mr. Ierullo did not influence the results of the competition?
[14] The Appeal Board dismissed Mr. Ierullo's appeal on the basis that he would not have been able to pass the exam if he had been given an additional ten minutes to verify his spelling. The Appeal Board stated at paragraph 59 of its Decision:
In any event, the 10 minutes would have only allowed appellant Ierullo to verify his spelling, which as I have already pointed out, only constitutes a minor factor in the assessment of ability A-4.I am far from convinced that, had he been afforded an additional 10 minutes to verify his spelling, appellant Ierullo would have been able to obtain the pass mark of 150 on ability A-4 given his score of 98 on this ability. Accordingly, I cannot conclude that the fact that appellant Ierullo did not get his spellcheck fixed influenced the results of the competition. (Underlining added)
[15] Mr. Ierullo submits that the Appeal Board erred in its interpretation of the merit principle because it applied the wrong legal test. The proper test, according to the applicant, is whether, in the absence of the irregularity, the candidate might have been able to obtain a pass mark, not whether the candidate would have been able to pass the test.
[16] The applicant relies on the Federal Court of Appeal's decision inStout v. Canada (Public Service Commission) (1983), 51 N.R. 68, as authority for the correct legal test in these circumstances. Pratte J. for the Court held:
We are all of the view that this decision cannot stand. True, an irregularity in a competition does not always vitiate the appointments made as a result of that competition. It invalidates those appointments where there is a real possibility that, in the absence of the irregularity, the result of this competition might have been different. (Underlining added)
[17] The respondent concedes that this is the correct legal test. Accordingly, the Appeal Board erred in law. The test is not whether Mr. Ierullo "would" have been able to obtain a pass mark, but whether there was a "real possibility that he might" have been able to obtain a pass mark.
[18] The respondent submitted that "the misuse of the words" by the Appeal Board with respect to Mr. Ierullo should not be considered fatal since the Appeal Board understood the correct test in an earlier paragraph of the decision with respect to another candidate. At paragraph 56 of the Decision, the Appeal Board found that another error with respect to another candidate "constituted such a very minor defect that it could not have possibly influenced the results of the competition". The respondent submits that this demonstrates that the Appeal Board knows that the proper legal test is "possibly", not "probably".
[19] I cannot agree. On such an important issue as the proper legal test, the Appeal Board must correctly express and apply that test. It cannot use words which indicate a different test on such a critical issue. This is an error of law. The parties agree that the standard of review is correctness on this issue.
Issue No. 3
Did the Appeal Board err by not considering whether the computer malfunction with respect to the "cutting and pasting" of electronic reference documents disadvantaged the three applicants?
[20] All three applicants state that they were prejudiced during the competition because they were unable to access electronic reference materials and "cut and paste" them into their answers, while subsequent groups of candidates were able to do so. They submit that this problem was raised before the Appeal Board, and that the Board erred in law by not considering the matter in its decision.
[21] I am satisfied that the Appeal Board did not err on this point. I have come to this conclusion because the applicants did not raise the "cut and paste" problem as an allegation in their appeal. Although they may have been unaware of this issue when they initially submitted their allegations to the Board, it was incumbent upon them to amend the allegations once they became aware of the issue. In that regard, subsection 27(3) of the Public Service Employment Regulations, 2000, S.O.R./2000-80 permits an appellant to amend an allegation or introduce a new allegation if such an allegation results from information obtained after full disclosure. Furthermore, subsection 27(2) allows an allegation to be raised orally with the consent of the Appeal Board. The Appeal Chairperson also went to lengths to ensure that the applicants were not raising a new allegation. The only reference to a possible "cut and paste" problem was in the testimony of Mr. Molos. This testimony was made in support of the second allegation concerning the unfairness of requiring candidates to type their exam on a computer as this could give an unfair advantage to candidates more familiar with computers. The Chairperson asked the applicants' representative several times whether a new allegation was being raised. The representative responded that there was no new allegation and that Mr. Molos' testimony was in support of the second allegation only.
[22] The applicants had the duty to clearly and unequivocally raise the "cut and paste" issue before the Appeal Board as a new allegation. Since the applicants did not do so, the Court will not intervene on this issue. The judicial review mechanism does not allow applicants to raise new issues on review that were not adequately canvassed in front of the Board. (See generally Gitxsan Treaty Society v. Hospital Employees' Union (1999), 249 N.R. 37 (F.C.A) at para. 15).
[23] The appeal raised in excess of ten allegations which had to be dealt with by the Appeal Board. It is not necessary, and in fact could be quite difficult, for the Appeal Board to deal with additional issues not presented as a new allegation. The Appeal Board implicitly found that this issue did not warrant attention with respect to the second allegation.
DISPOSITION
[24] For these reasons, the application by Domenic Ierullo will be allowed, and his appeal will be referred back to a newly constituted Appeal Board of the Public Service Commission for a hearing in writing on the existing record to determine whether there is a real possibility that, in the event that Mr. Ierullo had been allowed extra time (between ten and twenty minutes), Mr. Ierullo might have been able to obtain a pass mark. The application by the three applicants with respect to whether the Board erred in law by failing to consider the "cut and paste" computer malfunction will be dismissed.
[25] In view of the mixed results, and that both counsel advised the Court that they are not seeking their costs in the circumstances of this case, there will be no order as to costs.
Possible Mootness
[26] Counsel advised the Court that since this application was launched, Mr. Ierullo has won a second competition and is now acting in the position for which he was competing in this matter. However, that competition process is under appeal so that Mr. Ierullo's appointment may or may not be confirmed. If it is confirmed, this matter will be moot. Accordingly, the Appeal Board ought not commence its hearing with respect to this matter until that appeal process has been completed.
ORDER
IT IS HEREBY ORDERED THAT:
1. the application by Domenic Ierullo will be allowed, and his appeal will be referred back to a newly constituted Appeal Board of the Public Service Commission for a hearing in writing on the existing record to determine whether there is a real possibility that, in the event that Mr. Ierullo had been allowed extra time (between ten and twenty minutes), Mr. Ierullo might have been able to obtain a pass mark. This hearing should not take place until it is determined that the matter is not moot;
2. the application for judicial review by all three applicants with respect to whether the Board erred in law by failing to consider the "cut and paste" computer malfunction is dismissed; and,
3. there is no order as to costs.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1243-03
STYLE OF CAUSE: Domenic Ierullo and Jim Molos and Patti Cruickshank
and
The Attorney General of Canada, Genevieve Poire, Shelley
Curlew, Kelan Ton, Stephane Dorge, Amy Reier, Tom
Scott, Kevin McCollum, Kathleen McCoy, Stephan Ahad
and Jordan Lee
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 29, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Kelen
DATED: October 7, 2004
APPEARANCES:
SOLICITORS OF RECORD:
FEDERAL COURT
Date: 20041007
Docket: T-1243-03
BETWEEN:
DOMENIC IERULLO and JIM MOLOS
and PATTI CRUICKSHANK
Applicants
and
THE ATTORNEY GENERAL OF CANADA, GENEVIEVE POIRE, SHELLEY CURLEW, KELAN TON, STEPHANE DORGE, AMY REIER, TOM SCOTT, KEVIN McCOLLUM, KATHLEEN McCOY, STEPHAN AHAD AND JORDAN LEE
Respondents
REASONS FOR ORDER
AND ORDER