Date: 20000809
Docket: T-1283-99
Between:
YVON GIROUX
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
DENAULTJ.
[1] The applicant was not successful in obtaining one of the Large File Case Manager (AU-4) positions for which the Department of National Revenue had initiated closed competition 97-NAR-QC-LAV-CC-18 (A) (B) (C). A selection board reviewed 115 applications and selected only 33 for an interview to assess the candidates' abilities and personal suitability. The applicant passed the written test but did not receive the minimum pass score[1] in the test to evaluate his abilities.
[2] The applicant was dissatisfied with the selection board's decision and appealed to an appeal board established under subsection 21(1) of the Public Service Employment Act, R.S.C., 1985, c. P-33, which was composed of the chairman, Gaston Carbonneau. However, his appeal was dismissed, which gave rise to the present application for judicial review under section 18.1 of the Federal Court Act, R.S.C., 1985 (2nd Supp.), c. 10.
[3] In his very detailed memorandum in support of his application for judicial review, the applicant describes, as he did before the appeal board, several "situations" in which, he alleges, the selection board wrongly scored his answers to the questions the candidates were asked in order to assess their abilities and personal suitability. In one case, he maintains, the selection board made an error in scoring his answer, which was exactly the same as the expected answer; in other cases, he argues, his answers to the questions were identical or similar to those of the other candidates to whom points were awarded, while he was denied the points. The applicant maintains that if these errors had not been made he would have succeeded in obtaining one of the positions he was seeking.
[4] It is important to explain at the outset that, in the decision giving rise to the application for judicial review, the appeal board first reviewed the case law[2] defining the roles of the selection board and of the appeal board, and then examined each of the "situations" in which, in the applicant's submission, the selection board made a mistake. The appeal board concluded that it could not substitute its opinion for that of the selection board [TRANSLATION] " . . . particularly because the appellant was unable to establish that the selection board made unreasonable findings, let alone that the conclusions could be described as palpably unreasonable."[3]
[5] The Court does not believe there is any ground for intervention in this regard. In Blagdon, a decision of the Federal Court of Appeal, Mr. Justice Pratte stated that the duty of an appeal board:
. . . is not to re-assess the candidates but to conduct an inquiry in order to determine whether the selection has been made in a way consistent with the merit principle; . . . The mere fact that an Appeal Board could, had it sat as a Selection Board, have reached a conclusion different from that reached by the Selection Board is not a sufficient ground for allowing the appeal. It must be realized that the assessment of the merit of various persons, which is the function of the Selection Board, cannot be reduced to a mathematical function; it is, in many instances, a pure matter of opinion. And, there is no reason why the opinion of an Appeal Board should be preferred to that of a Selection Board.
In Ratelle, which was decided several weeks prior to Blagdon, Pratte J.A. had followed the same reasoning when he wrote:
If a Selection Board has performed its duty in accordance with the Act and regulations and has made an honest effort to choose the most deserving candidate, then an Appeal Board would be exceeding its authority if it allowed the appeal from the decision of the Selection Board on the grounds that the latter had not availed itself of the means considered by the Appeal Board to be most appropriate for the performance of its duty.
[6] In this case, the appeal board properly did examine the "situations" in which, according to the applicant, the selection board had misinterpreted his answers, and it rejected each of the grounds raised by the applicant.
[7] However, prior to stating that the selection board's conclusions were not unreasonable and that it could not substitute its opinion for the selection board's, the appeal board had stated the following opinion:
[TRANSLATION] In conclusion, I must emphasize that the appellant argued his case by interpreting the notes taken by the selection board as he liked. It must be remembered that the board assessed each of the candidates' answers in the context of an interview and not solely on the basis of the notes taken by its members. I must also add that the point when they reached a consensus was shortly after the end of each interview, when the candidates' answers were still fresh in their minds. In contrast, the appellant interpreted the interview notes made available to him many months later in a totally different context from an interview.
[8] The applicant bases his main argument on that paragraph: the appeal board assumed, in deciding this case, that the selection board had not assessed the candidates' answers on the basis of the notes taken by its members but rather ". . . the point when they reached a consensus was shortly after the end of each interview, when the candidates' answers were still fresh in their minds".
[9] The applicant submits that this is a serious error of fact, as the examination of Yvan Marceau, one of the members of the selection board, makes plain. He was questioned by the applicant as to when the candidates' answers had been scored, and the following exchange took place:
[TRANSLATION]
YVON GIROUX:
-Mr. Marceau, you told me that most of the candidates that you interviewed were scored right at the end.
YVAN MARCEAU
MEMBER OF THE SELECTION BOARD:
Yes.
. . .
YVON GIROUX:
- Yes, but here is my question: All the candidates that you interviewed at the beginning of the three-week period and who were scored right at the end, did you use your interview notes to score them?
YVAN MARCEAU
MEMBER OF THE SELECTION BOARD:
- I think that is usual. I believe there were three candidates . . . ah, three members of the board who were taking notes. I think that all we had to assess was not the, the . . . interpreting or thinking about what the candidate might have said other than what was written in our notes. It was our notes. That's how we did the assessment. Even if we score them three weeks later, I don't think that changes anything in terms of the notes we took.
YVON GIROUX:
- That's fine.
YVAN MARCEAU
MEMBER OF THE SELECTION BOARD:
- And all the candidates were assessed on the same basis: the notes we took on each of the candidates.
[10] The applicant submits that [TRANSLATION] "this testimony proves that the selection board used its interview notes, exclusively, for the scoring and that when it assigned the points it did not have in mind the answers that were not in their notes".[4] He also adds that this testimony shows that the appeal board's general conclusion was in error.[5]
[11] The Court is of the view that the applicant's interpretation of both the passage from the appeal board's decision and the answer of the selection board member, Yvan Marceau, is entirely too narrow. First, the appeal board chairman, Mr. Carbonneau, notes that the candidates' answers were derived from the context of an interview and not just the notes taken by the members: after all, nothing in that sentence rules out the possibility that the answers were scored on the basis of both the candidate's interview and the notes taken at that time. What the selection board member, Mr. Marceau, said in his testimony was that most of the candidates were scored right at the end and that he used his interview notes to score them at that time, a situation which he described as being usual. As the appeal board inferred, the witness' answers do not rule out the possibility that the members of the selection board reached a consensus at the end of each interview, when the candidates' answers were still fresh in their minds.
[12] In fact, the passages from the examination of Yvan Marceau do not tell us how many or which of the candidates interviewed were scored after all the interviews were completed. Nor do those passages tell us whether the applicant was one of the candidates whose answers were scored after the interview or after all the candidates' interviews were completed. In other words, the evidence adduced by the applicant does not establish that the testimony of the selection board member, Yvan Marceau, is inconsistent with the inference drawn from it by the chairman of the appeal board.
[13] For these reasons, the application for judicial review is dismissed with costs.
_________________________
Judge
Ottawa, Ontario
August 9, 2000
Certified true translation
Mary Jo Egan, LLB
Date: 2000809
Docket: T-1283-99
Ottawa, Ontario, the 9th day of August 2000
PRESENT: THE HONOURABLE MR. JUSTICE DENAULT
Between:
YVON GIROUX
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The application for judicial review of the decision of the appeal board dated June 28, 1999, is dismised with costs.
PIERRE DENAULT
Judge
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF LAWYERS AND SOLICITORS OF RECORD
COURT FILE NO.: T-1283-99
STYLE OF CAUSE: Yvon Giroux v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 30, 2000
REASONS FOR ORDER OF: The Honourable Mr. Justice Denault
DATED: August 9, 2000
APPEARANCES:
Yvon Giroux FOR HIMSELF
Claude Morisette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
[1] The selection board had fixed the pass score at 240 points out of 400; the applicant first obtained 222 points, which, after review, was increased to 231 points.