Buttau et al.,

Parties/Partis: Hugo Buttau, James Rodney, Barbara Sacrey and Michael Smith, Applicants and Treasury Board [Public Works and Government Services] Respondent
Court # Cour: T-1611-94
Judgment/Jugement Date: 95-05-11

Reasons for Order

Tremblay-Lamer J.

I. Introduction

This matter is an application for judicial review of a decision of an Appeal Board constituted pursuant to section 21 of the Public Service Employment Act [ R.S.C. 1985, c. P-33.] . The Appeal Board dismissed the appeals brought by the Applicants against the appointment without competition of Dwayne Willmer to an ENG-04 position at Public Works Canada.

II. Issue

1. Did the Appeal Board err in concluding that the Respondent department had adhered to the merit principle in this staffing action as required by section 10 of the Public Service Employment Act?

III. The Facts

In October, 1991, Mr. Willmer was assigned on a temporary basis to a newly created ENG-03 position in the Buildings Group of the department's Edmonton office. In early 1992, his substantive position in the Transport Group was declared surplus.

In April 1992, at the request of the department, the Public Service Commission used the Surplus Employees Exclusion Order to appoint Mr. Willmer indeterminately to the ENG-03 position that he had been occupying on a temporary basis. A little less than one year later management obtained approval to reclassify the ENG-03 position to the ENG-04 level, retroactive to July, 1992.

By letter dated March 8, 1993, the RCMP, a client for whom Mr. Willmer had been providing services, officially requested that all RCMP work "be directed to one Public Works Canada Employee, namely Mr. Dwayne Willmer". That same month, the department developed a Statement of Qualifications ["SOQ"]. The department assessed Mr. Willmer against the SOQ. Mr. Willmer was found to be qualified and was appointed without competition to the ENG-04 position.

Following a determination by the Public Service Commission that the Applicants' opportunity for advancement had been prejudicially affected by the appointment without competition, the Applicants decided to appeal. At that point, the department assessed Mr. Willmer.

IV. Tribunal's Decision

In a decision dated June 1, 1994, the Appeal Board concluded that the merit principle had beenfollowed in the staffing action which formed the subject of the appeals. The Board dismissed the appeals.

In its reasons for decision, the tribunal admits that Mr. Smith's assessment on the knowledge factor was flawed, but concluded that this flaw had no impact on the final outcome. Mr. Willmer was determined to be the best qualified candidate based on the assessment of the Abilities and Personal Suitability criteria more than on the knowledge factor. The tribunal also admits that the Selection Board missed the fact that Mr. Smith had worked on a large number of projects when he acted as an ENG-04 and, therefore, that Mr. Smith would have met the Abilities requirement. Regardless, the Board concluded that Mr. Willmer was still the best qualified candidate.

V. Analysis

The Applicants submit that the Board should have considered evidence that Mr. Willmer was pre-selected. While the Board has no jurisdiction to review an appointment made under the Surplus Employees Exclusion Order, that lack of jurisdiction does not preclude the Board from looking at the method of appointment as evidence from which an inference of pre-selection could be drawn. The Respondent argues that the Board did consider this evidence and found no evidence of pre-selection.

In my view, the Respondent's conclusion on this point is correct. The Board was quite explicit on this subject. It stated:

It is not for me to review Mr. Willmer's appointment under the SEEO. This exclusion order specifically stipulates that appointments made under it are not subject to appeal. As I cannot review the appointment, I cannot find that it was done improperly in order to exclude some surplus employee in favour of another one. At best, Mr. Ahrens carefully constructed argument must remain speculation which cannot be used as evidence of pre-selection.

I was given no reason to disbelieve Mr. Foy's statement that he had no knowledge of the alleged conversations between Mr. Rodney and Mr. Willmer. I also could not find the time lag involved in the reclassification exercise to be totally unreasonable. After all, Mr. Foy was only responsible for preparing the Job Questionnaire. Once it left his office in December 1992, it was out of his hands. Mr. Foy is obviously a very busy manager who has a lot of demands on his time. In the circumstances, that the Job Questionnaire took four months to prepare is not evidence of pre-selection.

My reading of the assessments did not convince me that they were prepared with the sinister ulterior motives that the appellants' representative would have me believe. While Mr. Willmer's assessment is more positive than the others, it reasonably reflects his performance appraisals the same way that the appellants assessment report reflect their performance appraisals.

Second, the Applicants submit that given the flaws found by the Appeal Board in the evaluation of the candidates, it was impossible to conclude that the flaws did not influence the outcome. The Respondent argues that there was sufficient evidence upon which the Appeal Board could base its conclusion, and that its finding was consistent with the decision of the Federal Court of Appeal inCaldwell [ Caldwell v. Public Service Commission [1978], 25 N.R. 458 [F.C.A.].] . In that case, the Court found that an Appeal Board may decline to set aside the result of a flawed selection process if the Board is satisfied that the result of the selection process was not influenced by the irregularities.

The essential question for the Appeal Board is whether the selection of the successful candidate has been made in accordance with the merit principle [ Blagdon v. Public Service Commission, [1976] 1 F.C. 615 [F.C.A.] at 622-623.] . Mr. Justice Pratte summarized the respective roles of the Selection and Appeal Boards succinctly:

Second, it should be borne in mind that "the appointment function and the appeal function are different stages of the 'merit' system" [MacDonald v. Public Service Commission [1973] F.C. 1081, per Jacket C.J. at page 1086]; the function of a Selection or Rating Board and that of an Appeal Board must not be confused. A Rating Board is an instrument used by the Public Service Commission to perform its duty to select candidates on the basis of merit ... An appeal Board, under section 21 of the Act, has a different function. Its duty is not to re-assess the candidates but to conduct an inquiry in order to determine the selection has been made in a way consistent with the merit principle; its decision is to be made on "a judicial or quasi-judicial basis". The mere fact that an Appeal Board could, had it sat as a Selection Board, have reached a conclusion different from that reached by the Selection Board is not a sufficient ground for allowing the appeal ... And there is no reason why the opinion of an Appeal Board should be preferred to that of a Selection Board.

In the case at bar, the Appeal Board identified irregularities in the Knowledge assessment of Mr. Smith but found that Mr. Willmer was nevertheless the best qualified candidate based on the assessment of his Abilities and Personal Suitability qualifications. The Appeal Board stated:

In my opinion, the irregularity that I identified did not have an impact on the final outcome as the Board had based their conclusion that Mr. Willmer was the best qualified candidate much more in the assessment of the Abilities and Personal Suitability qualifications than on the Knowledge Factor.

Nonetheless, the assessment of Mr. Smith's Abilities and Personal Suitability qualifications were also found to be flawed.

I agree with the Respondent that irregularities in one aspect of the assessment [Knowledge] may not have been enough to change the result of the assessment and contravene the merit principle. However, flaws were also found in the second aspect of the assessment. Not having the correct information concerning Mr. Smith's abilities, there was no factual foundation for the Appeal Board to conclude that there had been a proper assessment of the relative strengths of the candidates.

How could the Appeal Board arrive at the conclusion that the selection of Mr. Willmer was made in accordance with the merit principle when it accepted that the Selection Board had the wrong facts for the assessment of Mr. Smith? There was no evidence upon which the Selection Board could adequately assess Mr. Smith, and therefore no evidence upon which the Appeal Board could determine that Mr. Willmer was the best qualified candidate and that the result of the selection process had not been influenced by the irregularities.

Finally, in his concluding remarks, the Appeal Board Chairperson states the two factors that convinced him that the merit principle had been followed:

In the end, two things convinced me that the merit principle had been adhered to in this staffing action and that, therefore, my intervention was not warranted in this case. Firstly, during the hearing, the appellants acknowledged that Mr. Willmer had performed "very well" in his assignment since he had come over from the Air Transportation Group. Finally, throughout this long and difficult inquiry, Mr. Ahrens [the Applicants' representative at the hearing] concentrated the majority of his energy and arguments to attacking either the process or the Board's credibility rather than Mr. Willmer's qualifications.

I find these factors to be totally irrelevant to the issue of the relative merit of the candidates.

In the circumstances, it is my opinion that the Appeal Board could not conclude that the flaws in the evaluation had no influence on the outcome. Consequently, the decision of the Appeal Board is set aside and the matter is remitted back to the Appeal Board with a direction to send it back to the Selection Board for an evaluation on the relative merit of the candidates.

Ottawa, [Ontario]

This 11th day of May 1995

Danièle Tremblay-Lamer, Judge