Date: 20000913
Docket: T-1587-99
OTTAWA, ONTARIO, THIS 13th DAY OF SEPTEMBER 2000
BEFORE THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
SHELLEY E. CARROLL, TRACY PURCHASE,
ROBERT ADSHADE, MICHEL BELLIVEAU,
TRACY LEE DENINE, PAMELA MURCHISON,
MARIELE ARSENAULT, DEBORAH A. TUPPER,
GERALD VAN DE VIEL and DENNIS LAVIGNE
Applicants
- and -
ATTORNEY GENERAL OF CANADA,
SUZANNE SOMERS, COLIN AUSTIN, ALLISTER MACLELLAN,
VICKI MONROE, JACK HANNAH, MAUREEN BELLER,
PHILIPPE LECLERC, DERM KING, DAVID WIGHTMAN,
RALPH POLCHES, GREGORY PYE, ERIKA PARLEE,
BRUCE ASSELSTINE, JAMIE MCISAAC, MARLENE BROWN,
and DAVID HARRISON
Respondents
O R D E R
The Appeal Board's decision is set aside and the application for judicial review is allowed. The matter is sent back to the Appeal Board for redetermination.
"Danièle Tremblay-Lamer"
JUDGE
Date: 20000913
Docket: T-1587-99
BETWEEN:
SHELLEY E. CARROLL, TRACY PURCHASE,
ROBERT ADSHADE, MICHEL BELLIVEAU,
TRACY LEE DENINE, PAMELA MURCHISON,
MARIELE ARSENAULT, DEBORAH A. TUPPER,
GERALD VAN DE VIEL and DENNIS LAVIGNE
Applicants
- and -
ATTORNEY GENERAL OF CANADA,
SUZANNE SOMERS, COLIN AUSTIN, ALLISTER MACLELLAN,
VICKI MONROE, JACK HANNAH, MAUREEN BELLER,
PHILIPPE LECLERC, DERM KING, DAVID WIGHTMAN,
RALPH POLCHES, GREGORY PYE, ERIKA PARLEE,
BRUCE ASSELSTINE, JAMIE MCISAAC, MARLENE BROWN,
and DAVID HARRISON
Respondents
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of Judith Giffin, Chairwoman of the Public Service Commission Appeal Board, rendered July 28, 1999. Chairwoman Giffin allowed in part the appeals brought by the Applicants pursuant to section 21 of thePublic Service Employment Act1 ("PSEA") against selections for appointment to the position of Correctional Officer, CX-01, with the Correctional Service of Canada ("CSC") at Springhill, Nova Scotia. This application is brought in respect of two allegations which Chairwoman Giffin dismissed.
[2] The two allegations dismissed and at issue in this application were articulated by the Chairwoman as follow:
| (1) that the Selection Board did not assess all candidates against all of the duties of the position, particularly the security aspects of the position; |
| (2) that some of the ability and skills qualifications were based on the work of a Correctional Officer II position, and that the department was trying to cut corners by only using one type of exam when in fact the exam they are using is for a CO-II [CX-02] competition and not a CO-01 [CX-01] position. |
[3] Pursuant to subsection 21(1) of the PSEA,2 the purpose of an appeal of a Selection Board's decision is to ensure that the merit principle is observed; the merit principle is the guiding feature of the selection process. The purpose of such appeal is well described by the Federal Court of Appeal in Charest v. Attorney General of Canada:3
| The holding of a competition is one means provided by the Act to attain the objective of selection by merit. However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant's rights, it is to prevent an appointment being made contrary to the merit principle.4 |
[4] The Applicant first submits that given the similarity between the performance and qualification standards between the CX-01 and CX-02 positions, that the Appeal Board Chairwoman erred when she failed to ensure herself as to whether the candidates were correctly assessed by the merit principle.
[5] The Applicant contends that the Appeal Board could not be satisfied that the assessment tools applied by the Selection Board properly rated candidates with due regard to the key duties to be performed by a CX-01. Counsel argues that evidence established that the CX-01 position is security-centred, and that the officer is not responsible for inmate case management and casework functions which duties are to be performed by a CX-02.
[6] On the other hand, the Respondents submit that the Chairwoman correctly concluded that the Applicants had not shown that the ability and skill qualifications established for the CX-01 position did not afford a basis for selection according to merit.
[7] Candidates for the CX-01 position were assessed against the abilities and skills criteria listed in the qualification standards.5 These criteria included the ability to define and analyse problems; to communicate effectively; to motivate, to influence, to persuade and to assist individuals; and to plan, organize and prioritize work to meet deadlines and achieve results.
[8] Indeed, the same knowledge, abilities and skills criteria are applicable to the CX-02 position. However, this does not mean that they are not applicable to the CX-01 position. It means only that the CSC has adopted a consistent approach to security and offender management in its institutions.
[9] On that point I agree with the Respondents. It may be that CX-01's are not responsible for inmate caseloads or case management planning and assessment of inmates, however, part of their key activities includes, participating, under supervision, in the case management process for offenders and participating as a member of the correctional team within a unit and contributing to the development and implementation of unit programs.
[10] In light of the foregoing, I am of the view that the Appeal Board Chairwoman did not err in concluding that the abilities and skills qualifications established for the CX-01 position afford a basis for selection according to merit.
[11] The Applicants further submit that the candidates were wrongfully assessed by the Selection Board because there was no relative assessment of the critical aspect of the duties of the position, i.e. the security knowledge and skills, and, for that reason, the Appeal Board was required to find that the candidates had not been assessed in accordance with section 10 of the PSEA.6 In support of this proposition, the Applicants' counsel cites Laberge (Attorney General) v. Canada7 and Tiefenbrunner v. Canada (Attorney General).8
[12] The Respondents submit that the competition poster and the statement of qualifications provide that candidates are to be assessed against the critical security criteria in a separate training program, not by the Selection Board. It is during the Correctional Training Program ("CTP") that candidates must undergo a rigorous assessment of their security knowledge and demonstrate a variety of security skills.
[13] Counsel argues that the Chairwoman did not err in concluding that the candidates for the position of Correctional Officer 1 were assessed against the critical security criteria associated with the position.
[14] I disagree. The competition poster and the statement of qualifications provide that candidates are to be assessed against the critical aspect of the duties of the position, i.e. the security knowledge and skills, through the CTP. Candidates were required to complete the CTP in order to be appointed to a position of CX-01 but they could qualify on the eligibility list without having completed the CTP; they were required to successfully complete the CTP before any offer could be made. Candidates' critical security knowledge and skills required for the position were assessed individually during CTP on a pass/fail basis, thereby not permitting the comparison of the qualifications of candidates. In my opinion, the Appeal Board erred in law by failing to satisfy itself that on the basis of the qualifications established for the position, the manner of selection was one that permitted an assessment of the candidate's relative merit.
[15] Keeping this in mind, it is worthwhile to cite an excerpt of the Appeal Board Chairwoman's decision in relation to the issue of the security criteria she concluded:
| [...] the candidates have been rated against their knowledge of "Criminal behaviour and intervention techniques" and "Security policy and procedures" - the latter a critical element assessed on a pass/fail basis - and rated against their ability to "Define and analyze problems/crisis situations, identify options and recommend or take appropriate action for resolution" and "Apply the basic security skills and utilize security equipment, including firearms." Additionally, the candidates have been rated on their personal suitability as demonstrated on the job in terms of "Effective interpersonal relationships, Dependability, Initiative, Alertness and Flexibility" - all personal traits which undoubtedly inform the board as well on how a candidate copes with the security aspects of the position duties. [emphasis added].9 |
[16] The Chairwoman appears to have concluded that the candidates had been rated, by the Selection Board, against their knowledge, skills and ability relative to the security aspects of the CX-01 position. Yet, the Department's evidence reveals that the Part B Exam (Abilities and Skills) was not designed to assess a candidate's proficiency in the critical security aspects of the position of Correctional Officer 01.10
[17] Like in Tiefenbrunner,11 given the duties and statement of qualifications for the position, it was a clear duty of the selection board to assess the candidate's relative merit on a critical element of the position.
[18] On that basis alone, the Appeal Board's decision is set aside and the application for judicial review is allowed. The matter is sent back to the Appeal Board for redetermination.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
September 13, 2000.
__________________2 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.
5 See Qualification Standards for Correctional Officer I and II, Applicants' Application Record Vol. I at 203.
6 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.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
8 (10 November 1992) A-915-91 (F.C.A.).
9 Applicants' Application Record, Vol. 1 at 96.
10 See Department's submissions, Decision, Applicants' Application Record Vol. I at 66 and 75.