Date: 20040122
Docket: T-1389-02
Ottawa, Ontario, this 22st day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE KONRAD von FINCKENSTEIN
BETWEEN:
BARRINGTON BERNARD
Applicant
and
ATTORNEY GENERAL CANADA ET AL
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant applied for the position of Shift Clerk/Receptionist (CR-3) with Citizenship and Immigration Canada's (CIC) offices at the Lester B. Pearson Airport in Toronto. A three-member panel (panel) considered applications for this position based upon three criteria: "knowledge", "abilities and skills" and "personal suitability." While the applicant was found qualified with respect to the first two criteria, the panel found that he did not meet the minimum standard for "personal suitability." As a result, he was found not to be qualified for the position.
[2] The applicant appealed this decision to the Public Service Commission Appeal Board (Board) . One of his allegations was that the panel's notes were insufficient for the Board to be satisfied that the panel had reasonably evaluated his qualifications. Although the Board found that the notes were "sketchy" and established conclusions alone, it noted that the applicant had not questioned panel members as to why they had reached their conclusions in the selection process. It stated that it was the applicant's responsibility to contribute to the inquiry process of the appeal by producing relevant information such as the testimony of panel members. Based upon this finding, the Board concluded that the applicant had failed to meet the onus upon him.
ISSUES
[3] This appeal raises two issues:
1. Did the Board err by dismissing the appeal notwithstanding its finding that the panel had completed insufficient notes?
2. Did the Board err in its application of the burden of proof?
Standard of Review
[4] The parties agree that the standard of review for questions of law is correctness. The parties also agree that the standard of review for findings of fact made by an appeal board is set out in section 18.2 (4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7 (Federal Courts Act). Pursuant to this section, the Court will only grant relief if it is satisfied that the board made erroneous findings of fact in a perverse or capricious manner or without regard to the material before it.
Issue 1. Did the Board err by dismissing the appeal notwithstanding its finding that the panel had completed insufficient notes?
[5] The applicant states that, in its Reasons, the Board found that the panel's notes were "sketchy" and "contain(ed) conclusions" rather than any reference to the steps it had taken to analyse the applicant's responses to the interview questions. Under these circumstances, he argues that the Board erred in dismissing his appeal as it lacked sufficient evidence to assess whether or not the panel had respected the merit principle. He cites the judgement of Field v. Canada (Attorney General), [1995] F.C.J. No. 458 in his support. In that case, McGillis, J., found that there had been a lack of "any cogent evidence, either oral or documentary" on the Record. She concluded that " in the absence of an appropriate evidentiary framework," the Board lacked a basis upon which to determine whether or not the merit principle had been respected.
[6] This argument, in my view, can not succeed. In this case, the selection panel used three tools: an interview, reference checks and former appraisals. It also used recommended answers, a marking guide and a rating scale. These facts are quite different from Field, in which a one-member panel person gave identical marks to all of the candidates, kept no notes and gave no explanation as to how the reference checks had been used to rank the candidates.
[7] The Board discussed the sufficiency of the panel's notes at pages 10-14 of its Reasons. It noted that, pursuant to the judgement in Field, supra., an evidentiary framework is necessary for the Board to evaluate a panel's selection processes. It concluded at page 12 that:
The notes to which the appellant's representative referred me, can best be described as very sketchy. They do not, as she asserted, set out what the appellant said. Instead, they contain the conclusions which the selection board reached about his responses. If that was all that existed, I would be included to conclude that the appellant's argument was sound. However, the members of the selection board could have been questioned with regards to their recollections of what the appellant said and why they reached the conclusions which were found in their notes. Nevertheless, the board members were not questioned about this matter. Consequently, I did not receive this readily apparent evidence.
I am not willing to conclude solely on the basis of the notes that there was no evidentiary framework for the board's assessment of the appellant's responses to the oral questions at issue...... (underlining added)
[8] The foregoing makes it is clear that the Board concluded that, within an existing evidentiary framework (however sketchy), the applicant had failed to establish his case. I do not see how this finding can be held to be in violation of s. 18.2 (4)(d) of the Federal Courts Act.
Issue 2. Did the Board err in its application of the burden of proof?
[9] The applicant submits that there is a shifting burden of proof in proceedings before the Board as follows: (1) the applicant must raise a doubt as to whether or not the merit principle has been respected through the selection process, then (2) the burden of proof passes to the respondent, who must justify the Board's assessment.
[10] In this case, the applicant submits that the incomplete nature of the panel's notes resulted in it being unable to compare his responses to interview questions with those of other candidates. He submits that the lack of notes raises a doubt as to whether or not the panel respected the merit principle. In addition, he argues that the Board erred in finding that he should have obtained testimony from the panel as to the manner in which it conducted its selection process. In so doing, he submits that the Board ignored the adversarial and quasi-judicial nature of the proceedings before it and undermined his right to procedural fairness.
[11] The Respondent does not take issue with the applicant's characterisation of the law. However, it submits that the applicant has failed to meet the initial evidential burden upon him. Specifically, it notes that the only deficiency alleged by the applicant is that "the notes of his own responses taken by the selection board lacked sufficient detail about what he had said."
[12] There is no doubt that the dispute is adversarial. As Cattanch J. stated in Millward v. Public Service Commission, [1974]2 F.C. 530 at 539
While there is not a lis inter parties in the true sense of that term, there is, nevertheless, a contest between two parties. The deputy head is before the board to justify that the selection of the successful candidate was on the basis of the merit system and the unsuccessful candidate is present to establish that this was not the case. Such situation has been described and established by authority as a quasi-lis between quasi-parties.
[13] In Leckie v. Canada (Attorney General), [1993] F.C.J. No. 320 (C.A.) at para. 15 , Dècary, J.A. summarized the onus upon an appellant when appealing to the Board:
In order to succeed under section 21 in establishing that the merit principle had been offended, the applicants had to convince the Appeal Board that the method of selection chosen was "such that there could be some doubt as to its fitness to determine the merit of candidates" i.e. as to its fitness to determine whether "the best persons possible" were found. An appeal board's main duty being to satisfy itself that the best persons possible were appointed, it goes without saying that an appellant, before even embarking on a challenge to the method of selection chosen, should at least allege (and eventually demonstrate) that there was a real possibility or likelihood that the best persons possible were not appointed. (Underlining added)
[14] Similarly in Blagdon v. Canada (Public Service Commission, Appeals Board), [1976] 1 F.C. 615 [Blagdon] at para. 6, the Federal Court of Appeal concluded that
the essential question for the Appeal Board is whether the selection of the successful candidate has been made in accordance with the merit principle.
[15] Pursuant to the judgements in Leckie and Blagdon, supra., the question in this case is whether or not the applicant demonstrated to the Board that there was a "real possibility or likelihood" that the merit principle was not respected by the panel.
[16] In this case, the only evidence which the applicant provided to the Board were documents from the interview process, i.e the reference checks, the selection board's notes, his appraisals and one email. No evidence was presented which supported the conclusion that he was better qualified for the clerk position than the successful candidate and, therefore, that the merit principle had been contravened. The applicant chose not to testify nor to call members of the selection board. Moreover, the Record suggests his application for the clerk position was weak. Notably, two out of the three of the applicant's references recommended that he not be hired for the position, while the third expressed serious reservations in recommending him.
[17] On the basis of the foregoing, I find that the Applicant did not comply with the requirements set out in Leckie. He did not establish the initial burden placed upon him to "allege (and eventually demonstrate) that there was a real possibility or likelihood that the best persons possible were not appointed". The Board Chairman did not err by imposing an unreasonable burden of proof on the Applicant. He simply tested the Applicant's case against the evidentiary burden imposed upon him as a matter of law and concluded reasonably that the Applicant did not meet that burden. Accordingly I do not see how it can be said that the Board erred in its application of the burden of proof.
[18] This application is therefore dismissed with costs.
ORDER
THIS COURT ORDERS that:
1. This application is dismissed with costs.
"K. vonFinckentsein"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1389-02
STYLE OF CAUSE: BARRINGTON BERNARD
AND
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 19, 2004
REASONS FOR ORDER
AND ORDER : The Honourable Mr. Justice von Finckenstein
APPEARANCES:
Jacquie de Aguiayo FOR THE APPLICANT
J. Sanderson Graham FOR RESPONDENT
SOLICITORS OF RECORD:
Public Service Alliance of Canada
Legal Services,Collective Bargaining Branch
233 Gilmour Sgtree, ste 200 FOR THE APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario