Judgments

[1997] 3 F.C. 132

T-2608-95

Attorney General of Canada (Applicant)

v.

S. Bates (Respondent)

Indexed as: Canada (Attorney General) v. Bates (T.D.)

Trial Division, Campbell J.—Ottawa, January 14 and April 9, 1997.

Public Service — Selection process — Merit principle — Role and function of P.S.C. Appeal Board on hearing appeal of employee not reappointed to term position for failing written knowledge examination though having successful performance record for five years — Appeal Board justified in concluding employee should be reassessed under knowledge factor with due regard to qualifications demonstrated by performance record — Merit principle to be applied in recognition of contextual realities — Purpose of appeal to expose, correct errors in application of standards having effect of undermining merit principle — Merit principle must be cognizant of, and responsive to, history of case, life situation of individuals involved.

The respondent had been employed, on a term basis, for five years by Employment and Immigration Canada as a client service representative at the Toronto Telecentre, and had a successful performance record. The Department conducted a selection process to choose, from among employees whose contracts were about to expire, those who would be offered new term appointments. The respondent failed two written knowledge examinations and was accordingly found unqualified for reappointment.

A first Public Service Commission Appeal Board decision concluded that the assessment was invalid and did not conform to the merit principle. The Appeal Board stated that greater importance should have been given to the completely favourable performance reports and little importance to two less favourable subsequent monitoring reports generated shortly following the initial pilot stages of a new monitoring system which suggested that respondent’s knowledge had detoriarated and revealed an overall drop of service. The Appeal Board also stated that it was incumbent upon the selection board to address the contradiction between the respondent’s performance reviews and her failure on the written examination. The Appeal Board concluded that the respondent should be reassessed under the knowledge factor with due regard to her demonstrated qualifications in the performance of the duties of the position.

The new selection board assessed the respondent’s qualifications on the basis of her performance reports, monitoring reports, and her performance on the two written knowledge examinations, and found her unqualified with respect to the knowledge qualification.

The second Appeal Board faulted the second selection board for repeating the first board’s error in not reconciling its assessment of the respondent against the knowledge quailification with the performance reports. The selection board was also faulted for using the unfavourable monitoring reports as assessment tools because there was sufficient doubt as to their reliability as to render their use inappropriate. The Appeal Board also faulted the selection board for using the written knowledge examinations since they were now out of date. The second Appeal Board decision thus effectively reinforced the earlier one.

This was an application for judicial review of the second Appeal Board decision. The main issue was the role and function of an appeal board of the Public Service Commission of Canada. Essentially, the applicant argued that so long as everyone is judged in exactly the same way whatever assessment tools are used, and regardless of whether the results seem fair, the merit principle has been properly applied and an appeal board should not interfere.

Held, the application should be dismissed, with costs.

Although the Federal Court of Appeal in Charest v. Attorney General of Canada, [1973] F.C. 1217, stated that the right of appeal under section 21 of the Public Service Employment Act was not meant to protect the appellant’s rights, but to prevent an appointment being made contrary to the merit principle, it also endorsed the corrective approach adopted by the Appeal Board which voided the result of a competition which was, in its opinion, so organized as to be of questionable validity. The essential point to be taken from that case is not only that the merit principle is the guiding feature of the selection process, but also that it is to be applied recognizing contextual realities. That decision also endorsed the ability of an appeal board to be critical in the exercise of its obligations.

To adopt the proposition contended for by the applicant, that the appeal process is not corrective, would be to narrow its function to the point of making it useless. The purpose of an appeal is to expose and correct errors in the application of standards which have the effect of undermining the principle of selection by merit. To expose and correct errors is not to attack merit, but rather to protect it as a concept. It is entirely within the proper role of an appeal board to identify an error, and be instructive by saying what should be done to rectify the situation at hand, and what to do, or not to do, to avoid making the same error in the future. The merit principle must be cognizant of, and where necessary responsive to, the critical reality of the history of the case and the life situation of the individuals involved.

To properly apply the merit principle, the selection boards should have ascertained why the respondent scored so poorly on her written examinations. If some disability was the cause, it might very well be that an accommodation in the testing process would have to be made.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Rules, C.R.C., c. 663, Tariff B (as am. by SOR/95-282, s. 5).

Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10(1),(2) (as enacted by S.C. 1992, c. 54, s. 10), 21 (as am. idem, s. 16).

CASES JUDICIALLY CONSIDERED

APPLIED:

Charest v. Attorney General of Canada, [1973] F.C. 1217; (1973), 2 N.R. 288 (C.A.).

APPLICATION for judicial review of a Public Service Commission Appeal Board decision allowing the respondent’s appeal from a selection board decision that she was unqualified for reappointment to a term position at a Government Department because she had failed a written knowledge examination. Application dismissed.

COUNSEL:

Dogan D. Akman for applicant.

Andrew J. Raven for respondent.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Raven, Jewitt & Allen, Ottawa, for respondent.

The following are the reasons for order rendered in English by

Campbell J.: This judicial review focusses upon two federal government employment appeal decisions prompted by the respondent Ms. Suzanne Bates for the reasons that, although recognized as doing a fine job during her almost five years as a client service representative for Human Resources Canada, she was considered unqualified for reappointment to the position because she failed a two-hour written qualification examination.

The first of the appeal decisions (the Preto decision) set out reasons for why the process and decision making was flawed in allowing this “unacceptable result”. The second appeal decision (the Rosenbaum decision), which is under review here, effectively reinforced the Preto decision, and in so doing, was critical of the selection process which responded to the Preto decision and which allowed the “unacceptable result” to continue. It is from this criticism that the grounds for attacking the Rosenbaum decision are alleged to arise by way of judicial review under section 18.1 of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)].

This is a case with precedent value but little practical value to Ms. Bates. As will be seen in the outline of the facts, the chain of events against which Ms. Bates has fought in this case was started with an appeal board decision which preceded the Preto decision and, by the time it was rendered, was academic because the two employees who had instigated it had already been reappointed as was their goal. The decision, however, caused actions to be taken which generated the two subsequent appeal decisions. Before Appeal Board Chairperson, Mr. A. H. Rosenbaum, commenced hearing the appeal, the three appointments which Ms. Bates contested in launching that appeal had expired and, in fact, the three people concerned had been reappointed to new employment terms, thus making the appeal entirely moot. It is from that moot decision that this review has been initiated.

At the opening of the hearing Mr. Akman, counsel for the applicant, was candid in saying that the reason the application is being brought is that, after all that has occurred in this case, the applicant does not want to be left with the precedent set by the Rosenbaum decision. In attacking the decision many discrete arguments have been made, but they all go to the same issue: What is the role and function of an appeal board of the Public Service Commission of Canada?

The applicant argues that an appeal board’s sole statutory function is to conduct an inquiry to determine whether an impugned selection process, and its outcome, are in accordance with the concept of relative merit. Therefore, it is argued that an appeal board is precluded from substituting its function for those of the alternate redress mechanisms available in the Public Service. That is, the appeal board does not possess the statutory authority to right a “bad” decision of a redress mechanism so long as that decision is made in accordance with the merit principle. As will be seen in the examination of the Preto and Rosenbaum decisions, both decision makers were critical and instructive in their efforts. The applicant argues that to be so is an error in law. As will be detailed in the following analysis, I do not agree.

A.        The Basic History

The history of Ms. Bates’ experience with the Public Service Commission of Canada appointment process is highly detailed, but must be reviewed to provide the context in which the Rosenbaum decision was made.

In early 1994, Employment and Immigration Canada, which is now Human Resources Canada (the Department), conducted a selection process in order to select, among employees whose contracts for their positions were about to expire, those who would be offered new term appointments in their positions of Customer Service Representative at the Unemployment Insurance Telecentre in Toronto. After reviewing each employee’s quarterly monitoring reports prepared by their supervisors in Toronto, the manager of the Telecentre, Ms. Linda Brant, offered new contracts to 49 of the 52 employees for the period April 1, 1994 to September 30, 1994. Ms. Bates was selected and reappointed.

As a result of the selection process, two of the three employees who were not reappointed appealed pursuant to section 21 of the Public Service Employment Act [R.S.C., 1985, c. P-33 (as am. by S.C. 1992, c. 54, s. 16)]. The two employees, Ammirante and Strain, were reappointed prior to the appeal being heard. Thus, all but one of the 52 employees were reappointed. Despite this, the two employees continued with their appeal. On August 19, 1994, Appeal Board Chairperson, J. R. Ojalammi, concluded that the appeal should be allowed on the basis that:

1. The Department failed to establish a statement of qualification for the staffing process;

2. The Department appeared to view the process as an administrative function and the assessments conducted did not allow for differentiation between candidates according to merit; and

3. The Department had failed to properly disclose the monitoring reports to the appellants’ representatives.

The Department recognized the absence of merit in the first selection process. Between April and July 1994, the Department conducted a new closed competition in which all the employees of the Toronto region were entitled to participate and compete for appointments to anticipated future vacancies, on an indeterminate, determinate, and acting basis.

In September 1994, the Public Service Commission determined that the second selection process, being a closed competition, constituted appropriate remedial action for the difficulties identified by the Appeal Board in the decision concerning the employees Ammirante and Strain. After this closed competition, Ms. Bates was one of two employees who did not qualify, as her written knowledge examination conducted in May was 6 points short of the passing grade.

From August to September 1994, the Staffing Programs Branch of the Public Service Commission initiated further corrective measures with respect to the five contract employees who did not apply to the closed competition, and the two who applied to the closed competition but failed to qualify. Ms. Bates was in this latter category. In September 1994, the seven employees were assessed anew by a selection board with selection tools of “equal or comparable value” to those used in the second closed competition. The selection board, composed of three members, including Ms. Brant, the manager of the Telecentre, assessed the qualifications of the seven candidates by means of a written examination, and the abilities, skills and personal suitability of the candidates were assessed by means of reference checks and monitoring reports. Ms. Bates and three other candidates failed to attain the passing mark in the written knowledge examination. Ms. Bates failed the second written knowledge examination with a score of 113/200 against the pass mark of 140/200, with her deficit thereby increasing from 6 to 27 points.

Ms. Bates and the other three candidates who failed appealed the appointment of the three successful candidates pursuant to section 21 of the Public Service Employment Act. While the other three appellants ultimately abandoned their appeals, Ms. Bates proceeded with hers and argued that the written examination was not a reliable assessment of her qualification under the knowledge factor. Ms. Bates alleged that the selection board erred in failing to reconcile her performance on the second written examination with the selection board members’ personal knowledge that she had a successful performance record for nearly five years. Given that Ms. Bates had been reappointed to her position for several terms, she alleged that this performance record did not align with her poor performance on her written examinations.

B.        The Preto Decision

Ms. Anna E. Preto heard Ms. Bates’ appeal, and on April 21, 1995, found in her favour. Ms. Preto concluded that there were several reasons why this assessment was invalid and did not conform to the “merit” principle.

First, after reviewing the evidence, Ms. Preto concluded that Ms. Brant should have also relied on the Performance Review and Employee Appraisal (PREA) reports for Ms. Bates. About the performance reviews, Ms. Preto said: “[they] represent detailed documentary evidence of an in-depth assessment of the [Ms. Bates’] on-the-job performance of the duties of positions identical to that under appeal. …the PREA’s can only be characterized as completely favourable, containing numerous references to the monitoring of the complainant’s performance in providing client service on the telephones.”[1] The reviews were completely favourable and showed degrees of excellence ranging from 95% to 100%.

About this evidence, Ms. Preto added the following remark:

Clearly the department had not refuted the appellant’s [Ms. Bates’] highly favourable performance record, nor its indisputable link to the duties of the position under appeal, nor the fact that the requisite Knowledge qualifications are implicit in such a high level of performance.[2]

Second, Ms. Preto was not convinced by the two subsequent monitoring reports which suggested that Ms. Bates’ knowledge had deteriorated. The subsequent performance reviews were generated shortly following the initial “pilot” stages of the new monitoring system, during which an overall drop of service was detected.

Third, Ms. Preto expressed concern about use of advice that Mr. George Collins, Chief, Consultant Services, Central and Southwestern Ontario Region, Staffing Programs Branch, Public Service Commission, had given that the qualifications of the candidates should be assessed by means of selection tools of “comparable or equal value” to those previously utilized in the closed competition. She said:

Based on the department’s own explanation of what it understood Mr. Collins’ advice to mean, it would appear that somewhere along the line, “of comparable or equal value” turned into “identical”. On the basis of Mr. Collins’ own testimony, “identical” was not the advice that he had given to the department. That being the case, I can only conclude that the department either misunderstood or ignored Mr. Collins’ advice on how to proceed in the instant selection process.^<[3]

Finally, Ms. Preto stated her opinion that it was incumbent upon the selection board to address the contradiction between Ms. Bates’ performance reviews and her failure on the written examination as follows:

Which brings me to the main concern that this hearing has brought to light. I find it completely unacceptable that the appellant, having been continuously employed and reappointed in the same location to positions identical to the position under appeal for five (5) years (give or take a few days), by Ms. Brant (in her capacity as Manager of the UNIT), and told by that same Manager (in her capacity as PREA Review Committee), that she is doing a fine job, could be told, by that same Ms. Brant (now in her capacity as Selection Board chairperson), on the basis of a two (2) hour exam, that she is suddenly not qualified for appointment to the position. In spite of her protestations to the contrary, which I find less than convincing, Ms. Brant clearly had access to and knowledge of the appellant’s track record, and must have realized that the situation with regard to the appellant was completely contradictory, and quite simply made no sense within the context of merit. That being the case, in my view, it was then incumbent upon Ms. Brant, as part of the Selection Board, given her personal knowledge of the appellant, to address the apparent contradiction between the appellant’s proven successful track record and her failure in the written examination, with a view to reconciling it. That Ms. Brant and the rest of the Selection Board clearly failed to do, possibly as a result of poor and/or ambiguous advice. However, that does not detract from the responsibility which in my opinion the Selection Board had, under the circumstances, to deliberate the matter further.[4]

The following passage shows that Ms. Preto was instructive in granting the appeal by giving clear guidelines for what she expected should be done in order to correct the errors found:

In Halbert the Appeal Board provides an insight into the type of deliberations which would be appropriate in such circumstances. I believe that it would be helpful to the department to quote from this decision, although I would like to preface the quote by saying that the examples contained therein should not be taken as an exhaustive list. In Halbert, the discrepancy existed between the appellant’s track record and her performance during a selection interview:

… Having noted that the Rating Board was aware that its findings with respect to the appellant’s qualifications were at odds with other established facts, I find it surprising that the Rating Board did not feel it necessary to investigate the matter further. In fact, I consider that the Rating Board acted irresponsibly in intentionally ignoring the evidence before it which pointed out that the appellant’s immediate supervisor, who had spent four months observing her day-to-day performance of the advertised duties, had found her to be ‘fully satisfactory’. Before concluding that the appellant was unqualified for the position, it seems to me that the Rating Board would want to find out, for example, if the supervisor’s appraisal of the appellant was unreliable; if he had used qualifications or standards significantly different from the ones used by the Rating Board; if he had felt that he had not had enough time to appraise her; if the appellant was still going through a protracted period of training since she was still on probation; or if the work environment and management’s expectations in Selkirk were different from those in Winnipeg. In my view, these considerations and others that could be mustered, may have reasonably accounted for the apparent inconsistency between the appellant’s ‘track record’ and her performance at the interview. In acting as it did, the Rating Board deprived itself of valuable pertinent information on which to make an intelligent staffing decision.

After all, surely the whole point of using the interview as a selection tool is not to determine how a candidate will perform at an interview, but rather to provide the Rating Board with sufficient information to enable it to make some predictions respecting the candidates’ [sic] likelihood of success in performing the duties of the advertised job. (p. 7)

I can find no reason to distinguish the instant case from the above-cited. With regard to the instant appeal, I am not convinced that the appellant’s qualifications were fairly and fully taken into account by the Selection Board. In sum, I conclude that the appellant’s representative has cast sufficient doubt on the Selection Board’s assessment of the appellant’s qualifications under the Knowledge factor in this selection process so as to impugn it.[5]

Accordingly, Ms. Preto concluded that Ms. Bates “should be reassessed under the knowledge factor and, if necessary under the remaining factors with due regard to her demonstrated qualifications in the performance of the duties of the position”.[6]

C.        The Response to the Preto Decision

In response to the Preto decision, on June 6, 1995, Mr. Collins again became involved and this time directed the following corrective action:

Given the Appeal Board’s decision and remarks, I am directing that a Selection Board be convened to assess the appellant’s [Ms. Bates’] qualifications, beginning with the aggregate of Knowledge. While the tools used for selection are discretionary, the Selection Board must be cognizant of the fact that all available information which they are aware of, is to be considered and integrated into the evaluation of her qualifications.[7]

In accordance with this directive, a new selection board was established. The board assessed Ms. Bates’ qualifications on the basis of the following:

1. Information contained in the Performance Review and Employee Appraisal Reports respecting her work performance from October 1989 to October 1994;

2. Monitoring reports of her work from February 1990 to September 1994;

3. Performance on the two written knowledge examinations taken by her in March and September 1994.

Because Ms. Bates’ score was 44, the Selection Board found that she did not meet a minimum 70 marks out of 100 marks on the knowledge qualification.

On July 4, 1995, Ms. Bates appealed again to the Appeal Board, presenting several arguments regarding the Department’s corrective action. Ms. Bates alleged that:

1. The corrective action taken as a result of the Preto decision did not fully take into consideration the grounds upon which the appeal had been allowed in that decision. In particular, the Department failed to reconcile Ms. Bates’ favourable performance with the Selection Board’s own assessment of her knowledge through other means. The Selection Board did not contact Ms. Brant who had information regarding Ms. Bates’ knowledge.

2. The Selection Board used the two monitoring reports of August and September 1994 as assessment tools even though the Preto decision questioned the reliability of these reports.

3. The Selection Board used the performance on the two written knowledge examinations which were, at that time, out of date.

4. The 100% score on the monitoring report from May 1994 indicated a degree of excellence for Ms. Bates which contradicted the results of the written examination administered in that month.

5. The scoring system used by the Selection Board was flawed, since it viewed her final year as worth 50% of the total marks.

6. The Selection Board abdicated its duty of assessing Ms. Bates by relying on the assessments of two earlier Selection Boards.

D.        The Rosenbaum Decision

In response to Ms. Bates’ appeal, on November 7, 1995 Mr. Rosenbaum gave a careful decision, the challenged parts of which are as follows:

However, before providing those reasons, I note that the Appeal Board in the Bates case (supra) attributed the problems that arose out of the corrective action taken, following the decision in the Ammirante and Strain case (supra), in part, to Mr. Collins. Accordingly, I would have thought that Mr. Collins would have been very clear in indicating the corrective action to be taken as a result of the decision in the Bates case (supra) and, in particular, quite specific as to what the new Selection Board should and should not take into consideration, when assessing the appellant’s qualifications. However, rather than provide such direction, Mr. Collins choose to indicate, in general terms, what corrective action the new Board should take, i.e., “assess the appellant’s qualifications, beginning with the aggregate of Knowledge” and “be cognizant of the fact that all available information which they are aware of, is to be considered and integrated into the evaluation of her qualifications”. In my opinion, the absence of such direction resulted in the new Selection Board being left to determine how to implement the corrective action, without any guidance from Mr. Collins. That, in turn, resulted in the Selection Board making some unsound decisions as to the assessment tools to be used, when assessing the appellant against the “Knowledge” qualification, which raises considerable doubt as to whether she was properly assessed against it.

I agree with the appellant that the Board was remiss in not contacting Ms. Brant in order to elicit information about the appellant’s “knowledge” insofar as it relates to her performance of the duties of the (CR 4) Client Service Representative position. The Selection Board’s failure to do so, resulted in it not reconciling its assessment of the appellant against the “Knowledge” qualification with the favourable Performance Review and Employee Appraisal Reports on her work performance. The Appeal Board in the Bates case (supra) faulted the previous Selection Board in that regard and find it absolutely amazing that the new one, would commit the same error.

The Selection Board must also be faulted for using the monitoring reports on the appellant’s work performance in August and September, 1994, as assessment tools. The comments of the Appeal Board in the Bates case (supra), coupled with what it noted as Ms. Brant’s testimony on that subject, leads me to conclude that there is sufficient doubt as to the reliability of the information in those reports, so as to render them inappropriate tools to be used for an assessment to the appellant’s “knowledge”.

Likewise, I am of the opinion that the Board should be faulted for using the written examinations that the appellant underwent in May and September, 1994, as assessment tools. Considering that the Selection Board assessed the appellant against the “Knowledge” qualification in June, 1995, I find that her performance on those examinations to be data which is out of date. In other words, I find that the MacKintosh case (supra) is indeed applicable and that the lapse of time, in both instances, was too long. A further concern is that the assessment of the appellant’s “knowledge” on the basis of her performance on the examinations, was made by other Selection Boards and therefore the Selection Board abdicated its responsibility in basing its assessment of her in that regard, in part, on those assessments.[8]

E.        Analysis

As mentioned at the outset, the grounds raised for attacking the Rosenbaum decision concern the authority and function of the appeal process under the Public Service Employment Act (R.S.C., 1985, c. P-33, as amended) [subsection 10(2) (as enacted by S.C. 1992, c. 54, s. 10)] and from which the following provisions are particularly relevant to this case:

10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.

(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.

…

21. (1) Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within the period provided for by the regulations of the Commission, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.

The first appeal decision rendered by Chairperson Ojalammi on August 19, 1994 was with respect to a process conducted under subsection 10(1), whereas the processes that were appealed resulting in the Preto and Rosenbaum decisions were under subsection 10(2). All appeals, however, were conducted pursuant to the authority of section 21.

With respect to selection according to merit as required under subsection 10(1) and subsection 10(2), the applicant relies upon the following phrase in the Federal Court of Appeal decision of Charest v. Attorney General of Canada, [1973] F.C. 1217, at page 1221 as a statement of law which limits the role and function of the Appeal Board:

If a right of appeal is created by section 21, this is not to protect the appellant’s rights, it is to prevent an appointment being made contrary to the merit principle.

In his argument, Mr. Akman has made it very clear that the applicant takes the position that the phrase stipulates a very narrow role and function to the Appeal Board. In bringing this position to life in his argument about the errors in both the Preto and Rosenbaum decisions, he made the statement that “it wasn’t the Appeal Board’s business to mess around with the merit principle to rectify an unfair situation,—no one was happy with the way matters turned out, no one wanted her to lose her job, but to say to successful candidates ‘we are going to give Bates your job’ [is wrong]”.[9]

On the question about what to say to successful candidates, in his written argument Mr. Akman emphasizes these points: during the hearing Ms. Bates did not question either the validity of the two-hour written knowledge examination as a selection tool or the accuracy of her failing mark; at no time did Ms. Bates’ representative allege that the successful candidates were not qualified for the position; and at no time did Ms. Bates’ representative allege that Ms. Bates is as well or better qualified than the successful candidates.

From the quoted phrase in Charest, and the arguments made about it, I take it that the position of the applicant is that the proper administration of the merit principle is accomplished so long as, on applying the exact same criteria, it can be said that the successful candidates are qualified and the unsuccessful candidates are not equally or more qualified. That is, so long as everyone is judged in the exact same way whatever assessment tools are used, and regardless of whether the results seem fair, the merit principle has been properly applied and the Appeal Board should not interfere.

I have a great deal of difficulty with this approach, and apparently so did Ms. Preto and Mr. Rosenbaum.

First, I agree that Charest is binding authority on the role and function of an appeal board, but I do not agree that the above phrase captures the meaning of the decision rendered.

In the Charest case, Ms. Charest was a candidate for a closed competition which required all candidates to be asked the same questions in their oral interview. After the interviews were completed, Ms. Charest was the highest ranking candidate, but the Appeal Board voided the results of the competition since it found that, before her interview took place, Ms. Charest obtained information about the questions from another candidate who was interviewed before her.

Pratte J.A. in rendering the unanimous judgment of the Court upheld this action, and in so doing made the following statement [at pages 1220-1221], a small part of which is the above-quoted phrase:

Under section 10 of the Public Service Employment Act, “Appointments to … the Public Service shall be based on selection according to merit …”. The holding of a competition is one means provided by the Act to attain the objective of selection by merit . However, it is important to remember that the purpose of section 21 conferring a right of appeal on candidates who were unsuccessful in a competition is also to ensure that the principle of selection by merit is observed. When an unsuccessful candidate exercises this right, he is not challenging the decision which has found him unqualified, he is, as section 21 indicates, appealing against the appointment which was has been, or is about to be, made on the basis of the competition. If a right of appeal is created by section 21, this is not to protect the appellant’s rights, it is to prevent an appointment being made contrary to the merit principle. As, in my view, this is what the legislator had in mind in enacting section 21, it seems clear that a Board appointed under this section is not acting in an irregular manner if, having found that a competition was held in circumstances such that there could be some doubt as to its fitness to determine the merit of candidates, it decides that no appointment should be made as a result of that competition. Such a decision may well cause some hardship to qualified candidates who have done nothing wrong. However, aside from the fact that it is not an undue hardship (since candidates can always enter another competition), one cannot admit, in order to avoid this hardship, that appointments be made in the Public Service without ensuring that the merit principle is observed. [Emphasis added.]

Thus, I find that the Federal Court of Appeal in Charest endorsed the corrective approach adopted by the Appeal Board which “voided the result of a competition which was in its opinion so organized as to be of questionable validity”.[10] In doing so, Pratte J.A. in effect gave support to some criticism the Appeal Board had for the selection committee being that “The selection committee did not take the necessary precautions to avoid leaks”.[11] The essential point to be taken from Charest is not only that the merit principle is the guiding feature of the selection process, but its application must be in recognition of contextual realities. The decision is also an endorsement of the ability of the Appeal Board to be critical in the exercise of its obligations.

Second, to characterize the Rosenbaum decision as “mucking around with the merit principle” leads me to say two things: it depends on your perspective as to whether an appeal decision is interference or correction; and to adopt the idea that the appeal process is not corrective is to narrow its function to the point of making it useless.

In the context of this case, I find that the purpose of an appeal is to expose and correct errors in the application of standards which have the effect of undermining the principle of selection by merit being that the best qualified and most suitable candidate be appointed. That is, to expose and correct errors is not to attack merit, but rather to protect it as a concept.

Elements of the corrective function of the Appeal Board necessarily involve critical analysis and an instructive response. For the Appeal Board to be effective it has to say where the selection process went wrong, and, while it is true that such critical analysis might be viewed as criticism or vindication depending upon your perspective, it is a necessary element of the appeal process. I think it is entirely within the proper role and function of an Appeal Board to identify an error, and be instructive in saying what should be done to rectify the situation in hand, and what to do, or not to do, to avoid making the same error in the future.

And third, the merit principle must be cognizant of, and where necessary responsive to, the critical reality of the history of the case and the life situation of the individuals involved. There is no question that both the Preto and Rosenbaum decisions reflect strong concern for how there can be such a disparity between practical performance and a written examination. It is obvious that the concern in both was not to grant Ms. Bates a benefit, but to have this discrepancy rectified to ensure that she was treated fairly and equally with all other candidates.

The fact that Ms. Bates scored so poorly on her written examinations raises the undeniable concern as to “why?”. Although it has not been expressed on the record, I wonder whether she might have a learning disability or literacy problem which would make it impossible to score well on the written test. Whatever the cause, not to take up the issue as both Ms. Preto and Mr. Rosenbaum did I think would be an error, since how can the merit principle process be properly applied without the answer? Neither decision maker suggested the answer. They each merely asked that the answer be found.

It might very well be that when a candidate such as Ms. Bates cannot be expected to score as high as others on the written examination due to some disability, an accommodation in the testing process would have to be made

In this respect, Mr. Akman asked whether the effect of the Rosenbaum decision was fair to other candidates who passed the written examination and whom she might “bump” by being found qualified. On the facts of this case the question is wholly academic, but in general I would say that by accommodating the reality of Ms. Bates’ performance on the written examination does not establish a dangerous precedent. This is a case of potentially establishing a dangerous prejudice to Ms. Bates, and anyone else in her situation, by failing to respond to a serious malfunction in the assessment process.

I also think that it is proper for an appeal board to have full regard for the history of the case under consideration in order to judge whether an error has occurred, and if so, what to do about it. Mr. Akman argued that, in Mr. Rosenbaum reaching his decision, the Preto decision was “none of his business; he was only paid to interpret the merit principle; because he was motivated by moral values, the decision is not fair to the Department; it was not open to him to find fault; and this was a moral judgment not a judgment on merit.”[12] The import of Mr. Akman’s argument was that Mr. Rosenbaum was to consider the last decision of the Selection Board in isolation of any knowledge or concern which caused that decision to take place.

In my opinion, not only does such a view deny the importance of the context to ensure that actions are relevant to the parties concerned, but also it defies common sense. No appeal process can accomplish its purpose if it is myopic and constricted to the point of being blind to critical realities, including the contextual history of the case.

The Preto decision is part of the context of Ms. Bates’ case, and I think that Mr. Rosenbaum would properly be expected to operate within the context. That is, Mr. Rosenbaum was entitled and required to respect the previous decisions of the Appeal Board, including the Preto decision, even if not bound by them.

In fact, the Preto decision created an expectation about the proper application of the merit principle to the facts of the case in hand. As a result it is not at all surprising that Mr. Rosenbaum effectively enforced and reinforced the Preto decision because of the apparent inability of the Selection Board to get the points that Ms. Preto had carefully made. And for this very same reason, it is also not surprising that Mr. Rosenbaum showed some frustration in hearing the case and writing his decision. The criticism that he offered does not show partiality, but a willingness to be direct and constructive in ensuring that the merit principle is properly applied.

F.         Decision

I find that Mr. Rosenbaum made no reviewable error in reaching his decision, and, accordingly, this application for judicial review is dismissed.

Twice in 1995, on the merits of her case, Ms. Bates was successful before the Appeal Board of the Public Service Commission of Canada. Even so, the applicant brought this judicial review to test the Appeal Board’s role and function. Having regard to my decision, Ms. Bates ought not to suffer any financial burden for being put through this experience. For this special reason, I award costs to her in column III of Part II of Tariff B of the Federal Court Rules [C.R.C., c. 663 (as am. by SOR/95-282, s. 5)].

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