Date: 20000531
Docket: T-171-99
BETWEEN:
HUA CHANG
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of the decision of the Appeal Board Chairperson Diana Larivière-Caw, dated January 21, 1999, wherein the appeal of the applicant was dismissed.
FACTS
[2] Revenue Canada conducted a closed competition for the position of Senior Technology Specialist-Network, CS-04, for which the closing date was October 29, 1997. Thirty candidates submitted applications for the position. The department rejected twenty-six applications after comparing them against the screening qualifications retaining only four for consideration. The applicant was screened out on the ground that he did not meet the experience qualification set out.
[3] Two selection tools were used: a simulation exercise and a supervisory evaluation. The simulation exercise was used to assess each of the qualifications under knowledge, abilities and personal suitability of the Statement of Qualifications. The supervisory evaluation was used as an additional tool to further assess the knowledge, abilities and personal suitability qualifications.
[4] One candidate withdrew prior to the simulation exercise. Of the three remaining candidates assessed, all three were found qualified and placed on the eligibility list. Two out of the three have been appointed to the CS-04 positions and the third selected candidate has since left the department.
THE APPEAL BOARD"S DECISION
The Appeal Board accepted the department"s explanation that one document was inadvertently not placed in the competition file and for this reason, it was not disclosed to the applicant.
[5] As to any remaining documents, the Appeal Board concluded that the applicant should have requested the documents and that it was not up to the department to select these documents for him. The Chairperson concluded that it was her opinion that any concerns raised over disclosure are not sufficient to cause a delay in hearing the case.
[6] On the issue of experience, the Chairperson noted that it is the department"s responsibility to determine the qualifications for any position and that the Revenue Canada net (RC net) experience qualification appears directly linked to the work to be performed. She concluded that there was nothing patently unreasonable in the department"s decision to be specific about this experience requirement.
[7] The Appeal Board held that the onus of responsibility for ensuring that relevant information is provided in the application rests with the candidate. It is not reasonable to expect a department to conduct in-depth research into the background of a candidate to determine if he has the required qualifications to allow that candidate into a competition.
[8] The Appeal Board indicated that it was within the department"s authority to determine if the candidate"s experience was transferable. It concluded that there was nothing patently unreasonable about the department"s decision.
[9] The Appeal Board found that there is no inconsistency between the education requirements in the job and those cited on the statement of qualifications.
[10] As to the bias allegation, the Chairperson accepted the department"s explanations and concluded that there was no bias.
[11] The Appeal Board noted that although the applicant might be extremely well qualified, he clearly did not have the specific experience which the department was seeking for this particular position.
[12] The Appeal Board dismissed the applicant"s argument that the simulation exercise could not have assessed all of the qualifications.
[13] The Appeal Board dismissed the appeal.
THE APPLICANT"S POSITION
[14] The applicant submits that the statement made by the Chairperson indicating that he stated that he did not have specific RC net experience in this area was not true.
[15] He further alleges that the four audio tapes are not the full recordings related to the hearing.
[16] The applicant submits that the Appeal Board based its decision on an erroneous finding of fact that it made without regard to the applicant"s answer before it, by ignoring the evidence recorded on the note by Katherine Thibault, an independent party, and by ignoring first the evidence submitted as to international technical standards and second the experience, by accepting the education qualification which is inconsistent with the position description, and by accepting the Selection Board"s statements on technology of internetworking which demonstrate their incompetence in computer network technology, and their interpretation in contrary to technical and scientific publications in the world.
[17] The applicant submits that the department was familiar with the content of his research papers since it approved them. He claims that he has the required experience, as the appraisals, reference checks, work samples, published papers and other sources attached to his resume prove.
[18] He points to the fact that he was awarded a certificate of achievement in recognition of his contribution to the successful implementation of RC net on January 23, 1997. However, he did not file this document before this Court, nor did he present it to the Appeal Board.
[19] He submits that the Appeal Board ignored evidence as to the Intel proprietary standard H.123, from the Intel Corporation, that shows the evidence of Mr. Robert Tassé to be false.
[20] He submits that despite his allegations, the Appeal Board did not verify and justify the successful candidates" answer to the examination questions, and the rating given to each answer.
[21] The applicant submits that the Appeal Board failed to observe a principle of natural justice and procedural fairness in reaching its decision by showing bias toward the department throughout the hearing.
THE RESPONDENT"S POSITION
[22] The respondent submits that the Appeal Board Chairperson did not err in rejecting the applicant"s argument that the simulation exercise did not address all of the requirements for the position. The applicant did not provide examples of how the simulation exercise failed to address any of the qualifications. The department, on the other hand, tendered evidence as to the manner in which the simulation was used to assess the qualifications, including the process whereby questions and answers were matched to the qualifications. This evidence was accepted by the Appeal Board.
[23] The respondent submits that the Appeal Board did not err in concluding that there is no conflict between the education qualifications and the position description. The Chairperson accepted the evidence that Element 13 is not a direct reference to education but a reference to how knowledge is acquired. She did not err in recognizing that a statement of qualifications is prepared for different purposes than a position description and in concluding that there is no requirement that they contain identical information so long as there is no significant disparity.
[24] The respondent submits that the applicant failed to demonstrate bias on the part of the Appeal Board Chairperson.
[25] It is submitted that the Appeal Board Chairperson did not err in permitting the department to introduce the rating guide and to adjourn the hearing briefly so that the disclosure of that document could take place. In so doing, she made a reasonable and fair decision in the exercise of her discretionary authority to address procedural matters not specifically provided for in the PSEA and PSER.
[26] As to the tapes, it is submitted that if the applicant wished to attack the accuracy of the recording he is obliged to provide this Honourable Court with a transcript of that recording and identify the alleged deficiencies with precision. In the absence of a transcript, this Court is entitled to reply upon the certification provided by the Registrar of the Recourse Branch of the Public Service Commission.
ISSUES
| [27] 1. Are the four tapes the full audio recordings of the hearing that took place December 15 and 17 of 1998? |
| 2. Did the Appeal Board Chairperson base her decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the materials before her by ignoring evidence tendered by the applicant? |
| 3. Did the Appeal Board Chairperson err in holding that the simulation exercise dealt with all the qualifications? |
| 4. Did the Appeal Board Chairperson err in concluding that the education qualification was not in conflict with the position description? |
| 5. Did the Appeal Board Chairperson fail to observe a principle of natural justice and procedural fairness by exhibiting bias toward the department? |
ANALYSIS
| 1. Are the four tapes, the full audio recordings of the hearing that took place December 15 and 17 of 1998? |
[28] The audio recording is presumed complete and objective, unless proven otherwise. The burden of proving that the four tapes are not actually the full audio recordings of the hearing, rests with the applicant. This Court is not prepared to accept the argument that the tapes are incomplete on the ground that a person present at hearing, who is not a qualified stenographer, mentioned in her notes, matters that were not found on the audio recordings.
| 2. Did the Appeal Board Chairperson base its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the materials before her by ignoring evidence tendered by the applicant? |
[29] The Federal Court of Appeal underlined in Blagdon v. Public Service Commission, [1976] 1 F.C. 615, that the Appeal Board"s intervention can only be warranted if the Selection Board's decision was patently unreasonable.
[30] In Dansereau v. Canada (Public Service Appeal Board), [1991] 1 F.C. 444, the Federal Court of Appeal explained:
| I do not have to point out that this Court instinctively recoils from any intervention on questions of fact. In exercising the power to review and set aside conferred on the Court by paragraph 28(1)(c) [See Note 8 below] of its enabling Act we will only intervene ... when the case is one of so gross an error in the appreciation of the case presented as to indicate not merely a misjudgment of the effect of marginal evidence but a disregard of material before the tribunal of such a nature as to amount to an error of law or to give rise to an inference that some erroneous principle has been followed ... |
[31] The Appeal Board noted that the Selection Board examined the applicant"s qualifications, found him highly qualified but lacking in the RC net requirement. The Selection Board was of the view that the applicant"s experience was not transferable and concluded that he did not meet the required qualification.
[32] The Appeal Board Chairperson did not find that conclusion to be patently unreasonable, since the evidence before her proved that all the component which the applicant identified in his application were electronic commerce components and were not related to the network environment. The RC net was an internal home-grown system which was fairly recent and the applicant had no experience specific to this area, whereas the other applicants had experience directly related to the RC net.
[33] I am not convinced that the Appeal Board erred in reaching its conclusions. Moreover, since that the applicant had the responsibility to prove how his experience was related to the required qualifications. Incidentally, the poster competition clearly sets out:
| The onus is on the candidate to clearly relate his/her qualifications to all the above requirements of the position. |
[34] The applicant failed to discharge his onus and he was screened out as a result. In my view, this Court should not intervene.
[35] The applicant made reference to the Intel standard letter, however he was not able to explain how Mr. Tassé"s evidence was not true. I see no reason to dispute the Appeal Board"s finding.
| 3. Did the Appeal Board Chairperson err in holding that the simulation exercise dealt with all the qualifications? |
[36] The applicant was not able to convince the Appeal Board how the simulation exercise failed to deal with all the qualifications. The department explained to the Appeal Board that each candidate was provided with a background information relating to the simulation exercise. The background document contained a list of questions, with each question matching a designated qualification. The Appeal Board Chairperson noted in her reasons that the applicant stated during the hearing that the simulation was a true reflection of the job to be performed.
[37] The Appeal Board"s finding is based on the evidence before it and I fail to see how this Court can intervene on this particular subject.
| 4. Did the Appeal Board Chairperson err in concluding that the education qualification was not in conflict with the position description? |
[38] In Canada (Attorney General) v. Blashford, [1991] 2 F.C. 44, Justice Marceau held that the establishment of qualification is the exclusive prerogative of the department:
| As I understand the scheme of the Act, the "merit principle" is meant to govern the selection process that the Public Service Commission will follow in the exercise of its duty to judge and rank the candidates; it has no role to play in the establishment of the basic qualifications to be admitted to participate in the competition, the establishment of which is the exclusive prerogative of the Department. |
[39] The Education qualifications set out in the poster that an applicant must have a secondary school diploma or PSC approved alternatives or an acceptable combination of education, training and experience. Preference may be given to candidates with a degree in computer science or an associated discipline, or holding a certificate in an information technology discipline from an approved community college.
[40] Element 13 of the job description provides:
| The work requires knowledge and understanding of the theories and principles of computing sciences, normally obtained through graduation from a university or community college with an acceptable specialization in computing sciences. |
[41] The Appeal Board accepted the department"s explanations that this element refers to how knowledge is acquired and is not in conflict with the education requirement. Furthermore, the wording of this element clearly sets out that knowledge is normally obtained through graduation leaving the option open that it might be acquired through other means.
[42] I am not convinced that the Appeal Board reached a finding of fact not based on the evidence before it.
| 5. Did the Appeal Board Chairperson fail to observe a principle of natural justice and procedural fairness by exhibiting bias toward the department? |
[43]
In the Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, the Supreme Court of Canada established the test to be met when an apprehension of bias is alleged:
| The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly." |
[44] I am not convinced that a reasonably informed bystander could perceive bias on the part of the Chairperson because she allowed the respondent to file documents D-10 and D-5 (1 page missing) and adjourned the hearing to allow disclosure to the applicant.
[45] In my view, the applicant failed to demonstrate a reasonable apprehension of bias.
[46] In conclusion, I can understand that the applicant is frustrated having been screened out by the Selection Committee with his background. The applicant was not able to discharge the onus of proving that the Appeal Board made an error. He could have asked for an adjournment to adduce new evidence on his RC net experience before the Selection Committee or the Appeal Board; it could not be done before this Court on application for a judicial review.
[47] For all those reasons, this application for judicial review is dismissed.
"Pierre Blais"
Judge
Toronto, Ontario
May 31, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-171-99 |
| STYLE OF CAUSE: HUA CHANG |
Applicant
-and-
ATTORNEY GENERAL OF CANADA
Respondent
| DATE OF HEARING: TUESDAY, MAY 23, 2000 |
| PLACE OF HEARING: OTTAWA, ONTARIO |
REASONS FOR ORDER AND
| ORDER BY: BLAIS J. |
| DATED: WEDNESDAY, MAY 31, 2000 |
APPEARANCES BY: Mr. Hua Chang
For the Applicant, on its own behalf
Mr. J. Sanderson Graham
For the Respondent
SOLICITORS OF RECORD: 2404-530 Laurier Ave. West
Ottawa, Ontario
K1R 7T1
Phone: (613) 952-7898
For the Applicant
Department of Justice, Ottawa 284 Wellington Street East Memorial
Room 2211,
Ottawa, Ontario
K1A 0H8
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000531
Docket: T-171-99
Between:
HUA CHANG
Applicant
-and-
ATTORNEY GENERAL OF CANADA
Respondent
| REASONS FOR ORDER |
AND ORDER