Clark

Parties/Partis: The Attorney General of Canada, Applicant and Valerie Clark, Respondent
Court # Cour: T-554-94
Judgment/Jugement Date: 95-07-11

In the matter of an application to review and set aside, pursuant to section 18 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, a decision of an Appeal Board established by the Public Service Commission rendered the 11th day of February, 1994 respecting an appeal pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, as amended, [P.S.C. File No.: 93-EIC-1013]

Reasons for Order

Rouleau, J.

This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F7, for an Order setting aside the Decision of the Public Service Commission Appeal Board [the "Appeal Board"] by Chairperson L.M. Robinson, File Number 93-EIC-1013 rendered February 11, 1994 which allowed an appeal by the Respondent on the ground that the Selection Board did not verify candidates' answers to behaviour-based questions.

The Respondent was a candidate in competition 93-EIC-ONT-LOND-02 which was set up to establish an eligibility list to fill a vacant Immigration Counsellor position [CR-5] with the Canada Employment and Immigration Commission in London, Ontario. The qualifications of the candidates for the position were assessed on the basis of their answers to questions from a written examination, an interview and information obtained from reference checks. Five candidates, including the Respondent, were determined to be qualified for the position; the Respondent was ranked fourth.

The Respondent appealed the decision under s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 [the "Act"]. Before the Appeal Board, the Respondent maintained that the qualification relating to personal suitability had been improperly assessed by the Selection Board. Personal suitability was assessed by the Selection Board through reference checks and through the candidates' answers to three behaviour-based questions designed to measure effective interpersonal relations, initiative, and sound judgement.

The behaviour-based questions required the candidates to provide examples and answers from their own experience. One of the issues before the Appeal Board was whether answers to behaviour-based questions had to be verified by a Selection Board. On that issue, the Respondent submitted that these questions had not been verified by the Selection Board and, consequently, the selection process in this regard was flawed and contrary to the merit principle.

By its decision rendered February 11, 1994, the Appeal Board upheld the Respondent's appeal for the following reasons:

As for the issue of the verification of candidates' replies to the behaviour-based questions, in my view, the department has made a persuasive argument as to why such verification should not be mandatory. If this was the only consideration, I would decide that the Selection Board was not compelled to verify the information in candidates' replies. However, I am bound by the decision of the Federal Court in O'Brien et al. [supra]. The Department has contended that the Court was notasked to examine the issue of whether verification of answers was mandatory, and this may very well be the case. One wonders though why no effort was made to convince the Court that the Appeal Board erred in deciding that it was necessary to verify replies, since if the argument was accepted the Appeal decision could be upheld, i.e., it didn't matter whether or not verification had been done if there was no need to verify. In any event, it is not my role to revisit either the O'Brien appeal hearing or the arguments made before the Federal Court. I must apply the law as it is interpreted in the jurisprudence.

In O'Brien et al. Décary J. stated at p. 317: "the failure to verify the information given in answers to the situational question violated the merit principle". These words are clear and if they are not intended to cover all instances of behaviour-based questions this is something only the Court can decide. I have no choice but to intervene in the instant competition on the ground that the Selection Board did not verify candidates' answers to the behaviour-based questions.

The issue, therefore, is whether the Appeal Board erred in law by improperly applying the Federal Court of Appeal decision in O'Brien v. Canada [Attorney General] [ [1993] 153 N.R. 313.] .

Before this Court, the Applicant argued that the Appeal Board misinterpreted and misconstrued the Federal Court of Appeal decision in O'Brien, supra.

I do not agree. I am of the view that even though the issue in O'Brien was narrow in that the Court was asked if the Appeal Board had made an erroneous finding of fact, the Federal Court of Appeal went on to categorically state that the failure to verify information given in answers to behaviour-based questions violated the merit principle. In O'Brien, Décary J. wrote the following:

I would allow the application, set aside the decision of the Appeal Board, dated March 20, 1991, and remit the matter to the Appeal Board with directions to allow the appeals on the additional ground that the failure to verify the information given in the answers to the situational question violated the merit principle.

While I am aware that there was evidence before the Appeal Board in O'Brien, supra, and before the Appeal Board in the present case that verification of responses to behaviour-based questions is not always necessary to ensure the validity of such questions, there was also evidence which confirmed that concerns do arise regarding the accuracy or embellishment of responses and the means for dealing with these concerns. For example, one could make up a problem and the perfect solution that goes with it even though he or she might never have faced such a situation. This is why, I believe, the Federal Court of Appeal has required that these responses be verified so to ensure that the merit principle is consistently upheld.

I conclude that responses to behaviour-based questions in this matter were not verified; the Appeal Board was correct in allowing the Respondent's appeal board on O'Brien, supra.

For all the above reasons, this application is dismissed.

"P. Rouleau", Judge

Ottawa, Ontario

July 11, 1995