Digests

Canada (Attorney General) v. Abidakun

T-956-99

2001 FCT 812, Rouleau J.

23/7/01

31 pp.

Judicial review of decision of Chairperson of Public Service Commission Appeal Board ordering disclosure of certain documents associated with Middle Manager In-Basket Exercise, standardized test used by Revenue Canada to evaluate candidates in closed competition--Confidentiality of test materials very important aspect of merit principle-- Government departments and Commission may refuse to disclose documents during appeals where disclosure might prejudice continued use of standardized test or affect results of such test by giving unfair advantage to any individual--In Kaczmar v. Canada (Attorney General) (1999), 172 F.T.R. 197 (F.C.T.D.), Court interpreted Public Service Employment Regulations, s. 24, stated three issues before ordering access to confidential materials associated with standardized test-- (1) Chairperson must be satisfied material pertains to appellant or to successful candidate and liable, by reason of relevance, to disclose before Appeal Board--(2) Whether providing access to confidential materials might prejudice continued use of standardized test or affect results of standardized test by giving unfair advantage to any individual --(3) Whether prejudice to future use of test can be avoided through imposition of conditions--In present case, confidential test materials pertain to respondents and successful candidates and are relevant--But Chairperson failed to determine whether disclosure might prejudice continued use of future results of test by giving respondent or others unfair advantage--Asked wrong question by attempting to balance cost and confidentialy against appellants' right to be satisfied process conducted fairly--If granted access to scoring manuals, respondents able to familiarize themselves with correct responses and thereby improving performance in subsequent test and resulting in unfair advantage over other candidates--Continued use of test prejudiced--Same conse-quences follow if respondents permitted to review test papers of all of successful candidates--Chairperson should have addressed whether, if respondents given access to scoring manuals and test papers, certain such access would not prejudice continued use of test or affect future results by giving unfair advantage--Chairperson erred in concluding imposition of different levels of disclosure not justified-- Differential disclosure (to representative of respondents) justified by Regulations, s. 24, does not violate principles of fairness: Jain v. Canada (Revenue) (1999), 173 F.T.R. 92 (F.C.T.D.)--Application allowed--Public Service Employment Regulations, 1993, SOR/93-286, s. 24.