Canada ( Attorney General ) v. Clark
A-440-95
Hugessen J.A.
16/5/97
7 pp.
Appeal from Trial Division decision ((1995), 102 F.T.R. 226) dismissing appellant's application for judicial review of Appeal Board's decision allowing respondent's appeal-Whether decision in O'Brien et al. v. Canada (Attorney General) (1993), 153 N.R 313 (F.C.A.) stands for proposition that, as matter of law, verification of answers to behaviour-based questions always required in competitions for positions in Public Service-Court held in O'Brien failure by Selection Board to verify behaviourbased questions put to candidates in competition had effect of vitiating entire competition-Decision in O'Brien, although expressed in categorical terms, must be read in factual context-Court's conclusion in O'Brien failure to verify information given in answers to situational question violated merit principle not statement of law, simply repetition of uncontested finding of fact made by Appeal Board-Behaviour-based questions must not, as matter of law, always be verified in order to satisfy merit principle-Behaviour-based questions simply one of number of tools available in process of personnel selection-Adequacy of any particular test in any particular competition question of appreciation of facts of case-Verification of all answers to every candidate's behaviour based questions difficult, sometimes impossible-Fact arguing conclusively against mandatory requirement of verification as condition of validity of test-Appeal allowed.