A-359-80
Bernard W. Evans (Applicant)
v.
Public Service Commission Appeal Board
(Respondent)
Court of Appeal, Ryan and Le Dain JJ. and Kerr
D.J.—Ottawa, January 29 and May 21, 1981.
Judicial review — Public Service — Application to review
and set aside decision of Appeal Board dismissing the appli
cant's appeal against appointments to be made for the position
of Senior Correctional Officer — Although applicant had been
a correctional officer, the selection board found him unquali
fied because he failed to obtain a passing mark on "Potential
for Effectiveness" — Selection board's assessment based on
direction by Commissioner of Corrections that applicant not be
employed in an institution or have contact with inmates —
Applicant alleged to have precipitated a rioting incident
Whether selection board failed to act in accordance with merit
principle and with fairness — Application dismissed — Public
Service Employment Act, R.S.C. 1970, c. P-32, s. 21 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is an application to review and set aside the respondent
Board's decision dismissing the applicant's appeal against
appointments to be made from eligibility lists for the position of
Senior Correctional Officer. On the applicant's first appeal, the
Appeal Board held that the selection board failed to make a
proper assessment of his "Potential for Effectiveness". The
selection board was reconvened, but it reaffirmed its original
assessment. The applicant, a correctional officer, was assigned
to other duties in 1977 as a result of the publicity given to the
allegation or finding by a parliamentary sub-committee that he
had precipitated a riot at Millhaven Institution in 1976.
Because the selection board decided not to award him any
marks in respect of personal appraisal, the applicant failed to
obtain a passing mark on the "Potential for Effectiveness"
factor and was thus found unqualified. The selection board's
assessment was based on the direction made by the Commis
sioner of Corrections following the rioting incident that appli
cant was not to be employed in an institution or have contact
with inmates. The applicant contends that the selection board
failed to act in accordance with the merit principle and to treat
him with fairness by failing to offer him an opportunity to be
heard with respect to the Commissioner's memorandum on
which it based its assessment.
Held, the application is dismissed. The selection board did
not fail to act in accordance with the merit principle when in
the very special circumstances of this case it based its overall
assessment of the applicant's "Potential for Effectiveness" on
the Commissioner's judgment as to the likely effect of the
public perception of the applicant's responsibility for the dis
turbance in the Millhaven Institution in 1976. The assessment
could not have been ignored by the selection board. To have
done so would have been to have failed to act in accordance
with the merit principle and to conclude on some other basis,
not related to all the pertinent facts, that there was potential
for effectiveness, when there was reason to believe that it did
not exist. The restriction of applicant's employment placed by
the Commissioner had a bearing on the entire question of
potential for effectiveness or suitability. With respect to the
question of fairness, a selection board is not obliged to hear
candidates in a competition in so far as that implies a right to
present evidence and submit arguments concerning disputed
questions of fact or law. Its task is to set the examination or
evaluative process, to carry it out and to determine the results.
It is not the function of a selection board to review personal
appraisal reports: it must take a report as it finds it. The
Commissioner's memorandum with respect to employment of
the applicant was in the same category.
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police [1979] 1 S.C.R. 311, referred to.
APPLICATION for judicial review.
COUNSEL:
Maurice W. Wright, Q.C. and A. J. Raven for
applicant.
Walter L. Nisbet, Q.C. for respondent.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE RAIN J.: This is a section 28 application to
review and set aside the decision on May 16, 1980
of an Appeal Board under the Public Service
Employment Act, R.S.C. 1970, c. P-32, dismissing
the applicant's appeal, pursuant to section 21 of
the Act, against the appointments to be made from
two eligible lists established by a selection or
rating board for the position of Senior Correction
al Officer (CX-COF-3 and CX-COF-4) in institu
tions in the Ontario Region of the Correctional
Service of Canada, Department of the Solicitor
General.
The decision under attack is related to that of
another Appeal Board on January 7, 1980, which
allowed the applicant's appeal against the selection
of the successful candidates on the ground that he
had not been properly assessed in respect of one of
the rating factors. As a result of that decision the
selection board was reconvened, but it confirmed
its original assessment. It was against this reaf
firmed selection that the second appeal was
brought.
The disputed selection was based on a closed
competition conducted pursuant to section
5(1)(b)(i) of the Public Service Employment
Regulations, C.R.C. 1978, Vol. XIV, c. 1337. The
applicant, who had been a correctional officer in
the Penitentiary Service for several years, was
among the candidates who passed the initial
screening as possessing the "Basic Qualifications"
described in the notice of competition as follows:
Evidence, through work history, of capability to satisfactorily
perform Correctional Officer duties in a minimum, medium or
maximum security institution. Such evidence would normally
be required as a result of several years experience as a Correc
tional Officer.
He was also among the candidates who obtained a
passing mark in respect of the essential qualifica
tions or rating factors "Knowledge" and "Abili-
ties". He was found by the selection board, how
ever, to be unqualified, and was therefore not
placed on the eligible lists, because he failed to
obtain a passing mark on the rating factor "Poten-
tial for Effectiveness", which was referred to in the
statement of qualifications as follows:
Potential for Effectiveness
Overview of total suitability—
Some such attributes which may be considered are:
Ability to establish and maintain good working relationships.
Stability, reliability, self confidence, and maturity.
Judgement, initiative, discretion and persuasiveness.
Evidence of a positive attitude towards the inmate training and
rehabilitation program.
Ability to adapt to a new environment.
This factor was to be assessed in part on the basis
of an interview, which accounted for a total of 50
out of a possible 70 marks for the factor as a
whole, and in part on the basis of information in
the candidate's performance appraisal report,
which accounted for the remaining 20 marks out
of the possible 70. Fifteen of these 20 marks were
allotted to what was said in the personal appraisal
report about "responsibilities and skills" and the
remaining five for what was said about "promota-
bility". The applicant was awarded 36 marks out
of 50 for his performance in the interview, but he
received no marks on the basis of a personal
appraisal report, with the result that he failed to
obtain the overall passing mark of 42 out of 70, or
60%, on the "Potential for Effectiveness" factor.
The selection board based its assessment of the
applicant, in so far as a personal appraisal report
was concerned, on the fact that, for reasons which
will appear, the Commissioner of Corrections
directed that the applicant, although still holding
the position of Correctional Officer (CX-COF-2),
could no longer be assigned to the duties of that
position. The applicant, who had been a correc
tional officer in the Millhaven Institution for
several years, had been removed from that Institu
tion in 1977 on the direction of the Commissioner
and been assigned to other duties in Regional
Headquarters. In response to the request for the
latest "Performance Review and Appraisal
Report" for the applicant in the form approved for
the Correctional Service there was submitted for
consideration by the selection board a memoran
dum dated August 16, 1979 and entitled "Perfor-
mance Review & Appraisal Mr. B. Evans" from
Mr. R. Surgenor, Regional Chief, Preventive
Security, who was the applicant's immediate
supervisor in the Division of the Correctional Ser
vice to which he had been assigned. The memoran
dum stated that no one in the Division was quali
fied to assess the applicant as a correctional officer
because he had not performed any of the duties of
that position since joining the staff of the Division.
With reference to the applicant's removal from the
duties of a correctional officer the memorandum
stated, "He labours under a restriction imposed by
the Commissioner of Corrections, that he is not to
be employed in an institution or have contact with
inmates." The memorandum commented on the
applicant's attitude and performance in his new
duties and then gave the following assessment:
I assess Mr. Evans as a personable individual, intelligent and I
am sure, capable. I have little doubt that he has the ability to
perform at a highly acceptable level when employed in a
position in which he is interested sufficiently to apply himself
properly. 1 have considerable sympathy for Mr. Evans concern
ing the position in which he finds himself but confess to little
sympathy towards his attitude concerning that position. Mr.
Evans has potential of that I am certain. I regret that under
present circumstances that potential is not and will not be
realized.
On the applicant's first appeal, the position of
the Department was that the decision of the selec
tion board to award the applicant no marks in
respect of personal appraisal was based entirely on
the statement in the Surgenor memorandum that
the applicant "labours under a restriction imposed
by the Commissioner of Corrections, that he is not
to be employed in an institution or have contact
with inmates." The Appeal Board held that the
selection board had not made a proper assessment
of the applicant's "Potential for Effectiveness" in
so far as it had been based on this restriction of the
applicant's employment. The Chairman said:
I will not comment on whether Mr. Surgenor's letter constitut
ed a valid appraisal for the purpose of this competition since
the Rating Board chose to ignore most of this letter and made
its decision to fail the appellant on "Potential for Effectiveness"
on the basis of a single statement in the letter. I note that
appellant Evans' representative called no evidence to refute the
Department's contention that Mr. Evans had been restricted
from working with inmates by the Minister of the Department
and, therefore, on the balance of probabilities, I am prepared to
accept that Mr. Evans has been so restricted. Whether or not
the Minister has the authority to make such a restriction, and I
consider it unnecessary to make a finding in this regard, in my
view it is not reasonable to conclude that a candidate lacks
"Potential for Effectiveness" simply because the Minister has
said he cannot work with inmates. The responsibility for assess
ing candidates in a competition lies with the Rating Board and
not with the Minister. It is incumbent upon a Rating Board to
make an independent assessment of candidates qualifications
and to make appointments to positions on the basis of merit.
This would not preclude any power the Minister may have
under section 8(2) of the Canadian Penitentiary Act to suspend
from duty employees appointed by virtue of the competition
process.
If the Rating Board had investigated the reasons for the
restriction placed on appellant Evans' work activities and had
discovered valid evidence that Mr. Evans was personally unsuit
ed for working with inmates then I would not fault the Board
for concluding that appellant Evans lacked "Potential for
Effectiveness". However, according to the Department's state
ments at the appeal hearing, no attempt was made by the
Rating Board to ascertain why such a restriction had been
placed on Mr. Evans' job mobility. It is possible that the
Minister issued the restriction for reasons totally unrelated to
appellant Evans' "Potential for Effectiveness", for example, he
may have felt that Mr. Evans lacked the "Knowledge" to work
with inmates. In my opinion, the Rating Board erred in the way
in which they assessed Mr. Evans against the "Potential for
Effectiveness" factor.
Following the decision of the first Appeal Board
allowing the applicant's appeal for the reason
indicated in the foregoing passages, Mr. Bruce
Marsh, Regional Staffing Consultant of the Public
Service Commission, wrote on January 11, 1980 to
Mr. Conrad Weck, Regional Chief, Staffing and
Manpower Planning, Canadian Penitentiary Ser
vice, as follows:
1 wish to confirm our telephone conversation of 10 January,
1980, regarding the successful appeal of Mr. B. Evans against
the results of competition 79-CPS -ONT -CC-5.
The thrust of the Appeal Board's decision would indicate that
the Department failed to document their reasons for not quali
fying the appellant in accordance with the selection standards
(i.e. merit). It would, therefore, be appropriate to re-assess Mr.
Evans under the potential for effectiveness factor and fully
document the Department's rating and rationale. New appeal
rights should then be granted accordingly.
On February 8, 1980, Mr. A. M. Trono,
Regional Director General (Ontario) of the Cor
rectional Service, wrote a memorandum to Mr.
Week enclosing a memorandum from the Commis
sioner of Corrections to which he referred as
follows:
This memo was written as a result of the Appeals Officer's
comment and the PSC instruction relative to the recent CX 3-4
competition. The memo should now be referred to the Selection
Board and the Board instructed to review Mr. Evan's applica
tion taking cognizance of the Commissioner's statement.
Should the Board, after reviewing all pertinent information
again fail to qualify Mr. Evans, the Subject will again have
right to appeal.
The Commissioner's memorandum to Mr.
Trono, which must, I think, because of its impor
tance in this case, be quoted in full, reads as
follows:
I wish to confirm direction which I have given you regarding
assignments of the above employee, and several conversations
we have had on the subject.
As you are aware, Mr. Evans was named by the Parliamentary
sub-committee on the penitentiary system in Canada as having
precipitated a riot at Millhaven Institution on October 5, 1976,
as a result of "insulting remarks" made over a loud-hailer to
inmates in the exercise yard. The fact that such a statement
was made by a group of Members of Parliament cannot fail to
make a strong impression on the inmates. In their minds, 1 am
certain that the sub-committee confirmed their previous unsub
stantiated allegations about Evans' treatment of inmates. I have
to conclude that there is a strong possibility of disturbance by
inmates, involving the potential for injury to Evans, other
members of staff, and to the inmates themselves, if he were to
continue to perform the duties of a correctional officer in an
institution. Furthermore, there is in my mind a strong possibili
ty that the inmates would blame Evans for any incident that
might occur, whether or not he had any connection with it. This
not only reinforces the possibility of injury to Evans personally,
but would make it more difficult to identify the real source of
incidents which might occur. Consequently, I have concluded
that the continued employment of Mr. Evans on institutional
duties generates a degree of risk which is unacceptable to the
best interests of the Service, its employees and the inmate
population.
I am aware that Evans had not had the opportunity to respond
in any formal way to the statements of the sub-committee. He
believes that given such an opportunity he can, as he puts it,
"clear himself." However, I am of the opinion that this is not a
situation that will change because of evidence, persuasion or
rational argument. Press coverage of the incident, and the
sub-committee's statement regarding his role in it, have made
Evans a very high-profile figure, and his response is unlikely to
make any significant impression on the attitude or possible
reactions of the inmates to his presence in an institution. I have
therefore directed you not to employ him on duties that involve
working in an institution, including perimeter security.
I am sympathetic to the situation in which my direction places
Mr. Evans, who was appointed as a correctional officer and
wishes to continue his career as such. Regrettably his interests
are not the only ones that have to be considered. I have asked
you, and personally counselled him, to make every effort to
provide him with or train him for alternate employment. If he
is prepared to cooperate in this effort, I am confident that it
will succeed.
The implication in this memorandum that the
applicant may have been wrongly named in the
Report of the Parliamentary Sub-Committee on
the Penitentiary System as the officer who made
the insulting remarks which were considered to
have provoked the riot in the Millhaven Institution
is reinforced by statements in letters written by the
Honourable Allan Lawrence when he was Solicitor
General and by the Honourable Mark Mac-
Guigan, who was the Chairman of the Sub-Com
mittee. In his letter to Mr. B. C. Rutherford of the
Toronto Star, Mr. Lawrence said: "I can assure
you that if The Correctional Service of Canada or
I, as the new Solicitor General, had evidence to
suggest that Mr. Evans was responsible for the riot
at Millhaven in 1975,* he would no longer be
employed with The Service." In his letter of
March 28, 1980 to Mr. Evans, Mr. MacGuigan
said: "Whether we were right or wrong in our
description of the events in the Millhaven disturb
ance there is no parliamentary procedure for recti
fying the Report. But there are remedies in the
other areas which you can invoke." At the hearing
before the second Appeal Board the applicant
testified that he had not made the insulting
* [This should read 1976—See Appeal Board Notes, p. 11—
File: 80-21-C.S.C.-10—Ed.]
remarks in question, that he could bring several
other officers, including his supervisor, who were
present on the occasion to confirm this fact, that
he had not been questioned or called to testify by
the Parliamentary Sub-Committee, and that
nowhere in the evidence before the Sub-Commit
tee had it been suggested that he had made the
insulting remarks.
Pursuant to the instruction given by Mr. Marsh
to Mr. Weck the selection board reconvened, con
sidered the memorandum from the Commissioner
of Corrections to Mr. Trono, and reaffirmed its
previous decision not to award the applicant any
marks for "Potential for Effectiveness" on the
basis of a personal appraisal report. At the hearing
before the second Appeal Board Mr. Pyke, the
Chairman of the selection board, testified that the
members of the board as experienced officers in
the penitentiary system agreed with the Commis
sioner's judgment that because of the risks
involved it was no longer possible to permit the
applicant to work with inmates. He insisted that
the members of the board had formed their own
independent judgment of the applicant's suitability
or potential for effectiveness as a result of having
been named by the Parliamentary Sub-Committee
as the person responsible for the riot. His testimo
ny contains the following passages on this point:
... the board concluded that notwithstanding any other con
siderations Mr. Evans was not suitable to work in an institu
tional environment and did therefore not meet the requirements
of the potential for effectiveness factor. (Case, Vol. 1, p. 134)
... based on the expertise again of the selection board the
statements and concerns put forward by senior management
were considered to be valid, applicable and realistic in leading
the board to draw its own conclusions and come to a fully
independent decision as to the personal suitability of Mr.
Evans .... (Case, Vol. I, p. 134)
Q. No matter what evidence, from what you're saying, no
matter what evidence the appellant might produce to the effect
that he was not implicated at all in the riot that would have no
consequence to the selection board's decision.
A. Right. If Mr. Evans was to go before a tribunal of some sort
tomorrow and be found 100% innocent and get 55 apologies
from someone, it would not change the context of the rationale
of the decision. He has been identified, rightly or wrongly, and
the fact that he could be found innocent tomorrow will not
change the opinions of the inmates. They just will not change it.
It was the board's deliberations based on our knowledge of
working within an institution and again, I have to state ... Mr.
Done ... about personal knowledge. 1 have worked with Mr.
Evans. We have worked in an institution together. I am aware
of what would happen if Mr. Evans was to enter an institution.
It is a valid judgment call made by the three board members
that, yes, his personal safety is a factor here and it is this
personal safety factor that we have to consider. (Case, Vol. I, p.
137)
And based on our judgment we cannot conceivably see Mr.
Evans going in with this hanging over his head and working in
an institution with inmate and fellow officers. The personal
suitability and the overview was not just not there. (Case, Vol.
1, p. 139-140)
The applicant's contentions before the second
Appeal Board may be summarized as follows: (1)
the original selection board did not have authority
to reconvene and reassess the applicant for "Poten-
tial for Effectiveness"; (2) that in doing so it
violated two principles of natural justice—(a) it
failed to hear the applicant with reference to the
new evidence considered by it, and (b) it acted as
judge in its own case; (3) it improperly assessed
the applicant for "Potential for Effectiveness"
because it based itself entirely on the single state
ment in the Surgenor memorandum, "He labours
under a restriction imposed by the Commissioner
of Corrections, that he is not to be employed in an
institution or have contact with inmates", and
ignored the rest of the memorandum which pur
ported to be the personal appraisal report on the
applicant; (4) Mr. Trono improperly interfered in
the selection process by his direction to Mr.
Weck—"The memo should now be referred to the
Selection Board and the Board instructed to review
Mr. Evan's application taking cognizance of the
Commissioner's statement"; and (5) the selection
board improperly assessed the applicant for
"Potential for Effectiveness" because it relied on
the opinion or judgment expressed by the Commis
sioner of Corrections in his memorandum to Mr.
Trono and did not make an independent assess
ment.
The Appeal Board rejected the applicant's con
tentions. It found sufficient authority in Mr.
Marsh's letter to Mr. Weck for the selection board
to reconvene and reassess the applicant for "Poten-
tial for Effectiveness" in the light of the Commis-
sioner's memorandum. It held, on the authority of
a decision of this Court, that the rules of natural
justice did not apply to a selection board. On the
question whether the selection board properly reas
sessed the applicant for "Potential for Effective
ness" it found that the selection board had used a
"selection tool" different from the personal
appraisal report that had been used for the other
candidates, but it concluded that this was not a
ground, in the particular circumstances, for hold
ing that the applicant had been improperly
assessed in respect of this factor. The Appeal
Board found that the selection board had based its
original assessment on the single statement in the
Surgenor memorandum "He labours under a re
striction imposed by the Commissioner of Correc
tions, that he is not to be employed in an institu
tion or have contact with inmates," and that it
based its reassessment on the Commissioner's
memorandum. It found in effect that the assess
ment and reassessment of the applicant were not
based on a personal appraisal report, for the 20 out
of 70 marks attributable to that form of assess
ment, but rather on the Commissioner's opinion, in
which the selection board concurred, that the
applicant's potential for effectiveness as a correc
tional officer in an institution had been fatally
impaired by the effect of the Sub-Committee's
Report. On this point the Appeal Board said:
The selection board could not obtain a Performance Review
and Appraisal Report (PEN 1416) for the appellant, since that
form is only completed for security officers and he does not
perform the duties of a security officer. Therefore, the board
did not have a rating for the appellant under "Responsibilities
and Skills" as a security officer and, in the absence of such a
rating, it could not award him marks on that basis. On the
other hand, the selection board did have the views of the
Commissioner of Corrections as to why the appellant was
personally unsuited for the position under competition. After
carefully considering the fact that the selection board used a
selection tool to partially assess the appellant against the
"Potential for Effectiveness" rating factor which was different
from that used to assess all other candidates, I do not find,
under the circumstances, that this deviation from normal prac
tice or procedures was unreasonable. I must stress that I have
come to this conclusion in light of the circumstances of this
particular case and that I do not wish it to be construed that I
am of the opinion that a selection board can, in general, use
different selection tools, at its whim, when assessing candidates.
In my view, the facts of each individual case have to be
considered before coming to the conclusion that the use of
different selection tools for the assessment of different candi
dates was proper and, in the instant case, I find that such a
procedure was proper.
On the question whether the selection board was
entitled to place reliance on the opinion or judg
ment expressed in the Commissioner's memoran
dum the Appeal Board said:
The comments of the Commissioner of Corrections in his
memorandum dated February 4, 1980 may very well be catego
rized as "opinion". However, I consider it reasonable for the
selection board to have regarded that "opinion" as "valid
evidence" upon which to base its assessment of the appellant
against the "Potential for Effectiveness" rating factor, in view
of the position that the person who expressed that "opinion"
occupies, and the nature of his comments. Moreover, I must
add that no evidence has been submitted that that "opinion"
was not formed in "good faith". As a result, I cannot conclude,
on the basis of the information that the selection board took
into consideration, that the appellant was improperly assessed
against the "Potential for Effectiveness" rating factor.
The applicant's contention on this section 28
application is in essence that in its reassessment of
him in respect of the factor "Potential for Effec
tiveness" the selection board failed to act in
accordance with the merit principle and to treat
him with the essential fairness that is necessarily
related to that principle, and that accordingly the
Appeal Board erred in law in failing to allow the
applicant's appeal.
The applicant contends that he was entitled to
be assessed or reassessed in respect of the factor
"Potential for Effectiveness" on the basis of a
personal appraisal report, as in the case of the
other candidates, rather than on the basis of the
Commissioner's opinion as to whether he could be
employed in an institution as a correctional officer
as a result of the publicity given to the allegation
or finding that he had been responsible for the riot
in the Millhaven Institution in 1976. In support of
this contention counsel for the applicant submitted
that it was the duty of the selection board to assess
the qualifications of the applicant for the position
and not to decide whether for some other reason he
should not or could not be appointed to the posi
tion. The assessment of qualifications is for the
selection board; the question whether a person who
is otherwise qualified should not, for special rea
sons, be appointed to a particular position is for
the Public Service Commission. By the manner in
which it acted the selection board deprived the
applicant of a true assessment of his qualifications
for the position of Senior Correctional Officer. It
assessed his "Potential for Effectiveness" on a
different basis than that of the other candidates
and thus departed from or contravened the merit
principle.
According to the testimony before the Appeal
Board the selection board requested the most
recent personal appraisal report on the candidates.
It was stated, without challenge, at the hearing of
the section 28 application that the last personal
appraisal report of the applicant as a Correctional
Officer (CX-COF-2) was one made in 1977, some
two years before the selection process. In 1977 the
applicant was removed from the Millhaven Institu
tion and assigned, on the direction of the Commis
sioner to the duties of a "security officer" in
Regional Headquarters. The memorandum of
August 16, 1979 of Mr. Surgenor, although en
titled "Performance Review & Appraisal" makes
it clear that no one in the Division in which the
applicant had bccn employed since his re-assign
ment in 1977 was qualified to submit a "Perfor-
mance Review & Appraisal Report" on him as a
Correctional Officer (CX-COF-2), and I infer
from the memorandum and the testimony before
the Appeal Board that it was not considered possi
ble, because of the extent to which the applicant
was able or willing to perform the duties of a
"security officer" in Regional Headquarters, to
submit a "Performance Review & Appraisal
Report" on the applicant as a "security officer" in
the form approved for the Correctional Service of
Canada and apparently attached to Mr. Surgen-
or's memorandum. It is clear from the evidence
and was found as a fact by the Appeal Board that
the selection board did not base its assessment of
the applicant in respect of the factor "Potential for
Effectiveness" on anything that was said in Mr.
Surgenor's memorandum apart from the single
statement, "He labours under a restriction
imposed by the Commissioner of Corrections, that
he is not to be employed in an institution or have
contact with inmates."
The contention of the applicant on this issue
before the first Appeal Board was summarized by
the first Appeal Board as follows: "The Rating
Board, consequently, should have obtained a
proper appraisal from someone who had supervised
the appellant at the CX 2 level or, if this was not
possible, the Board should have based the appel
lant's assessment on `Potential for Effectiveness'
solely on the results of his interview." The first
Appeal Board did not express an opinion as to
whether the Surgenor memorandum met the
requirements of a personal appraisal report, appar
ently because the selection board had not based
itself on the memorandum as a whole but only on
the single statement that has been quoted concern
ing the restriction placed on the applicant's
employment. But the first Appeal Board did hold
that the selection board could validly base its
assessment of "Potential for Effectiveness" on this
restriction if it found, upon proper investigation,
that there was "valid evidence that it was related
to `Potential for Effectiveness'." As the first
Appeal Board put it, "If the Rating Board had
investigated the reasons for the restriction placed
on appellant Evans' work activities and had dis
covered valid evidence that Mr. Evans was person
ally unsuited for working with inmates then I
would not fault the Board for concluding that
appellant Evans lacked `Potential for Effective
ness' ". The fault that the first Appeal Board
found with the selection board was not that it had
based itself on the restriction rather than on an
appraisal report, but that it had failed to investi
gate and make an independent assessment of the
reason for the restriction.
In so far as the selection board was required, or
justified, to act in accordance with the reasons of
the first Appeal Board in carrying out the reassess
ment of the applicant in respect of "Potential for
Effectiveness" that it was instructed by the Com
mission to make, I do not think it was required to
base itself on a personal appraisal report in the
usual form, but it could rely on the Commission
er's restriction, if judged to be well founded, as an
overriding or peremptory factor that precluded a
passing mark for "Potential for Effectiveness". I
do not see how, in the face of this restriction and
the opinion on which it was based, if judged by the
selection board to be well founded, that the board
could assess the applicant as meeting the minimum
requirements for "Potential for Effectiveness".
The duty of the selection board was to make an
overall assessment of "Potential for Effectiveness",
involving, in the words of the statement of qualifi
cations for the position, an "Overview of total
suitability", and not to determine what the appli
cant's "Potential for Effectiveness" might have
been had it not been impaired for the reasons given
by the Commissioner. The opinion of the Commis
sioner was clearly related to effectiveness. It was
not a reason for not appointing the applicant
unrelated to the qualifications to be assessed by
the selection board. Indeed, as contended by coun
sel for the respondent, it was related not only to
the specific factor "Potential for Effectiveness"
but also to the basic qualification of "capability to
satisfactorily perform Correctional Officer duties
in a minimum, medium or maximum security
institution." The essential fact on which the Com
missioner's opinion was based, namely, publicity
given to the finding or statement in the Report of
the Parliamentary Sub-Committee that the appli
cant was responsible for the insulting remarks that
provoked the disturbance in the Millhaven Institu
tion was before the selection board. Although an
inquiry by the selection board into the truth of the
Sub-Committee's statement might have gone some
way to satisfy the understandable desire of the
applicant for justice, I do not think it was the duty
or function of the selection board to make such an
inquiry. It was not a tribunal equipped to make
such an inquiry. What was in issue, as indicated by
the Commissioner's opinion, with which the mem
bers of the selection board concurred on the basis
of their own experience in the penitentiary system,
was the likely effect of the statement, with the
publicity given to it, on the attitude of inmates,
regardless of any subsequent attempt to establish
and communicate a different view of the facts.
This was no doubt an opinion or judgment, but it
was one based on fact and experience, not essen
tially different from other aspects of personal
appraisal. It had some foundation. That is the
sense, I think, that should be given to the require
ment of "valid evidence" in the reasons of the first
Appeal Board.
This is a disturbing case because there is a
strong suggestion in the evidence that the appli
cant may have suffered an injustice, and that he
has sought in vain for a forum in which to have it
remedied. It is the opinion of the Commissioner
and the selection board that because of the way
inmates think and behave it cannot be remedied, at
least in so far as the applicant's ability to work
with inmates is concerned. One is reluctant to
accept that conclusion, but it is the judgment of
persons of experience in the penitentiary system.
Neither the Appeal Board nor the Court can sub
stitute its judgment on this issue for theirs.
In the result, I agree with the Appeal Board that
the selection board did not fail to act in accord
ance with the merit principle when in the very
special circumstances of this case it based its
overall assessment of the applicant's "Potential for
Effectiveness" on the Commissioner's judgment,
with which it agreed, as to the likely effect of the
public perception of the applicant's responsibility
for the disturbance in the Millhaven Institution in
1976. It was an assessment that was different than
that applied to other candidates because it was one
that was peculiar to the case of the applicant. It
could not be ignored by the selection board. To
have done so would have been to have failed to act
in accordance with the merit principle and to
conclude on some other basis, not related to all the
pertinent facts, that there was potential for effec
tiveness, when there was reason to believe that it
did not exist. The restriction placed by the Com
missioner came to the attention of the selection
board at a particular stage of the selection proc-
ess—in response to the request for a personal
appraisal report—but that does not mean that the
restriction had a bearing only on that stage of the
assessment. It had a bearing on the entire question
of potential for effectiveness or suitability.
The essential submission of the applicant on the
question of fairness is that the selection board
failed to offer the applicant an opportunity to be
heard with respect to the Commissioner's memo
randum on which it based its reassessment. Coun
sel for the applicant conceded that the selection
board was not exercising a judicial or quasi-judi
cial function subject to the rules of natural justice,
but he invoked the doctrine of fairness that was
recognized by the Supreme Court of Canada in
Nicholson v. Haldimand-Norfolk Regional Board
of Commissioners of Police [1979] 1 S.C.R. 311.
In my opinion a selection board is not obliged to
hear candidates in a competition in so far as that
implies a right to present evidence and submit
arguments concerning disputed questions of fact or
law. It is like any examining body. Its task is to set
the examination or evaluative process, to carry it
out and to determine the results. It is not obliged,
for example, to offer candidates an opportunity to
be heard on the merits of a personal appraisal
report. Internal administrative procedures may
provide for review of personal appraisal reports,
but that is not the function of a selection board
which must take a report as it finds it. The Com
missioner's memorandum with respect to employ
ment of the applicant was in my opinion in the
same category.
For these reasons I would dismiss the section 28
application.
* * *
RYAN J. concurred.
* * *
KERR D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.