A.B.

T-47-95

Pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, concerning an application to review and set aside; and

On Appeal from a Public Service Commission Appeal Board decision rendered on December 8, 1994 by John Mooney, Public Service Commission Appeal Board Chairperson, concerning the appeal brought by A.B. under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33.

Between : A.B., applicant, and Public Service Commission Appeal Board, respondent.

Reasons for Order

Pinard J.

This is an application for judicial review made pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, to have set aside the decision rendered on December 8, 1994 by the Public Service Commission Appeal Board established under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 [the Act]. This decision dismissed the applicant's appeal against the appointments made further to closed competition 94-CIC-CC-NHQ-04533 to fill the position of Programme Officer [PM-03], Citizenship and Immigration Canada, Hull, Quebec.

The applicant objects primarily to the Appeal Board Chairperson's following decision concerning the application of section 25 of the Public Service Employment Regulations, 1993 [the Regulations]:

[translation]

The appellant also argued that the department could not change the statement of qualifications after the selection process had begun and that the new statement of qualifications was not valid because it dit not contain any knowledge factor and because it lacked certain abilities related to the job. At that point, the department objected to the appellant's presenting this allegation because it was not included in the allegations that she had submitted prior to the hearing [Exhibit A-1]. I then allowed the department's objection for the reasons which I will explain later in my decision and I told the appellant that I could not deal with this allegation. She then asked that I indicate in my decision that she objected to my decision on this point.

...

I would like to begin by explaining why I refused to consider the appellant's allegation concerning the statement of qualifications. This case had initially been scheduled for hearing on November 29, 1994. On that date, the appellant appeared at the hearing and asked me to adjourn it because she was not feeling well. I granted her this adjournment and the hearing of the case was postponed until December 2, 1994. On November 29, the department had informed me that the appellant had still not submitted her allegations to it. I then explained to the appellant that section 25 of the Public Service Employment Regulations required that the appellant provide her allegations to the department in writing before the date of the hearing. This section reads as follows:

Before the date of the appeal hearing, the appellant or the appellant's representative shall provide to the appropriate deputy head or the deputy head's representative, in writing, the allegations that will be presented at the hearing.

The appellant provided certain allegations to the department before the hearing, but did not provide to it the allegation concerning the statement of qualifications. I therefore did not allow her to present this allegation on December 2 because she had not provided it to the department before the date of the hearing, contrary to section 25.

In fact, the file reveals that on two occasions, i.e., before the hearing of her appeal initially scheduled for November 29, 1994, and before this appeal was heard on December 2, 1994, the applicant failed to meet the requirement of section 25 of the Regulations because she never provided in writing to the appropriate deputy head or the deputy head's representative the allegation concerning the statement of qualifications in question. The second omission is especially serious because the applicant had been officially informed by the Appeal Board Chairperson that he would refuse to consider allegations that were not presented in the prescribed manner before the hearing on December 2, 1994. The only allegations that the applicant presented in writing are contained in her letter of November 30, 1994 and do not concern the change to the statement of qualifications, which change she merely raised orally at the hearing on December 2, 1994.

However, the applicant admits that she had been notified of the change to the statement of qualifications before the appointments made in the competition in question, and hence well before the crucial date on which the hearing of her appel began, namely December 2, 1994. Moreover, she received in due course all the information required under section 24 of the Regulations. [ 24.[1] An appellant or the appellant's representative shall be provided access, on request, to any document that contains information that pertains to the appellant or to the successful candidate and that may be disclosed before the appeal board. [2] The appropriate deputy head may provide, on request, to the appellant or to the appellant's representative a copy of any document referred to in subsection [1]. [3] Where the appropriate deputy head refuses to provide a copy of a document, the appellant or the appellant's representative may request that the appeal board order that a copy of the document be provided to the appellant or the appellant's representative.] In the circumstances, given the restrictive nature of section 25 of the Regulations, as indicated in particular by the word "shall" in the English version, [ 25. Before the date of the appeal hearing, the appellant or the appellant's representative shall provide to the appropriate deputy head or the deputy head's representative, in writing, the allegations that will be presented at the hearing.] the applicant was obliged to provide a specific allegation in writing concerning the change to the statement of qualifications, before the hearing on December 2, 1994. The fact that she reserved the right, in her letter of November 30, 1994, to raise "other related matters" cannot substitute for this formal obligation imposed under the authority of Parliament because the evidence clearly shows that the applicant was never prevented, before the hearing of her appeal, from providing in writing this specific allegation concerning the change to the statement of qualifications.

Accordingly, I conclude that the Appeal Board Chairman properly applied section 25 of the Regulations and that the audi alteram partem rule relied on by the applicant was not infringed.

With regard to the allegations presented in accordance with the Regulations, namely, that the applicant was treated differently, that the members of the Selection Board did not fulfil their obligation to act fairly and honestly, that the choice of questions gave some candidates an advantage over others, and that the choice of the marking system did not necessarily guarantee the selection of the most qualified candidate, I have reviewed the complete file, even though these points were raised before me only briefly and in a manner incidental to the principal argument based on the interpretation of section 25 of the Regulations. In this regard, the facts presented in evidence do not support the grievances of the applicant, who did not establish that the Appeal Board based its decision "on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it". [ Section 18.1[4][d] of the Federal Court Act.]

In Brambrough, [ Bambrough v. Public Service Commission, [1976] 2 F.C. 109, at page 115.] Le Dain JA. said the following:

... Selection according to merit is the dominant objective and consideration of the Public Service Employment Act and the essential criterion by which the exercise of powers under the Act is to be judged. Fairness may be regarded as an implied requirement of the Act in so far as it is necessarily related to selection according to merit, but appointments should not be set aside for alleged procedural irregularities when there is no reason to believe that the selection process has not been based on merit ...

Later, in Blashford, [ Canada [Attorney General] v. Blashford et al., [1991] 2 F.C. 44, at page 56.] Décary JA. recalled in these words the function of an appeal board set up under the Act:

... It is also settled jurisprudence that the function of an appeal board set up under the Act "is to enquire not into the qualifications established by the department for a position but into the question whether the merit principle prescribed by s. 10 has been observed in the selection and appointment of a candidate who has the qualifications determined by the department for the position."

Since the applicant has not persuaded me, having regard to all the circumstances of the instant case, that it was unreasonable for the Appeal Board to conclude that the selection of candidates in the case at bar was in keeping with the merit principle, judicial deference must prevail and the present application must be dismissed.

Ottawa, Ontario

May 24, 1996

Yvon Pinard, J.

Certified true translation