Krawitz

T-1970-93

Between: Elizabeth Krawitz, Applicant, and the Attorney General of Canada, Respondent.

Reasons for Order

Dubé J:

This application is for an order setting aside the decision of the Public Service Commission Appeal Board Chairperson ["the Appeal Board"] rendered July 8, 1993 dismissing the appeal of the applicant and confirming the decision of a Screening/Selection Board ["the Board"] which screened out two candidates including the instant applicant.

1. Facts

The applicant was employed by Transport Canada as a Flight Service Specialist at the Thompson Flight Service Station in Manitoba. In 1992, the Public Service Commission organized a competition to fill the position of Flight Service Specialist Human Resources Training Specialist [RO-04] ["the position"] with Transport Canada in the City of Winnipeg. The qualifications set by the employer for the position were summarized in a Statement of Qualifications ["SOQ"] issued by the employer and given to the Board. The SOQ defined the required experience as follows:

Experience:

- as a Transport Canada Flight Service Specialist.

- in the development and presentation of FSS training programs.

The employer circulated throughout the Department a competition poster which listed the required experience as follows:

... experience as a Transport Canada Flight Service Specialist and in the development and presentation of FSS training programs.

At the outset of the competition, the Board used another document entitled "Screening Criteria" to screen the candidates who had entered the competition. The document read:

Experience as a Transport Canada Flight Service Specialist

Criteria -8-10 years diversified experience which should include some of the following: supervisor experience, On-the-Job instructor, multi-station, instructor assignment TCTI, refresher training project, recruitment project involvement.

Experience in the development and presentation of FSS Training programs and Human Resource Planning.

Criteria - experience in TCTI training; Refresher training; Trainer for BTJOI; Recruitment training [AIRSS/new presenters, etc].

The competition report form filled in by the Board after the competition was completed shows that two candidates, including the applicant, were screened out on account of lack of experience, without the benefit of an interview.

On January 18, 1993, the Board wrote to the applicant informing her that she had been screened out of the competition because she did "not meet the screening qualifications stated on the competition poster established for this position". The explanation was as follows:

Specifically, you have failed to demonstrate "Experience as a Transport Canada Flight Service Specialist", as defined by the Screening Board.

On April 28, 1993, the Board wrote to the applicant revising the grounds previously given stating in part:

Further to our letter of January 18, 1993 the following information was omitted in error, Paragraph three should have read:

Specifically, you have failed to demonstrate "Experience as a Transport Canada Flight Service Specialist" and "Experience in the development and presentation of FSS training programs", as defined by the Screening Board.

That second letter was sent to the applicant after she had filed her appeal with the Public Service Commission. Her appeal was heard on June 29, 1993.

2. The Appeal Board's Decision

In its findings, the Appeal Board Chairperson accepted as a fact that the Screening Board did not use the 8-10 years time-frame as a screening tool. He concluded that as "the offending time frame only appears on a document that was not distributed, I am satisfied that, because it was not used in screening, there could be no impact on the final outcome of this competitive process".

As to the additional requirement for "planning and implementation of a recruitment program", the Appeal Board found that "although not listed in the Screening criteria, [it] was not unreasonable having regard to the nature of the duties to be performed". The Appeal Board Chairperson held that, as the applicant could not demonstrate that she met this additional requirement, "I cannot find that the department improperly withheld credit for this Experience criterion".

The Appeal Board accepted the department's explanation that BTOJI [Basic Training for On-the-Job Instructors] "did not constitute a new qualification but only an example of the type of experience which could enable the Board to screen in the candidates". As well, the Appeal Board accepted the department's explanation as to why they had not credited the applicant with "recruitment project involvement" or with "supervisor experience". The employer's representative explained that the applicant "had represented the department at various recruitment campaigns and had acted as a role model, explaining her duties and answering questions. She had not planned the campaigns, organized them or implemented them".

The employer's representative also made the point before the Appeal Board that the applicant's supervisory experience ought not to be considered because it had been acquired merely on acting supervisory assignments, rather than on permanent supervisory assignments.

That last point was picked up by the Chairperson of the Appeal Board who properly questioned the reasonableness of the Board's decision to reject the applicant's claim on that score without further inquiry. In the penultimate paragraph of its judgment the Chairman [and only member] of the Appeal Board writes as follows:

I have to question the reasonableness of the Board's decision to reject Miss Krawitz's claim about her supervisory experience without enquiring further whether her experience was sufficient to meet the criterion. A Board cannot assume that a candidate's claim is not valid simply because the information contained in the resumé is not explicit enough, especially when the SOQ is not very clear about what is required of the applicants. If this had been the only reason why the Board rejected the appellant's application, my findings might have been different. As it is, I am satisfied that the Board acted in a reasonable and consistent manner during the screening process, and that the decision that culminated in Miss Krawitz not receiving further consideration should not be overturned.

3. Issue

The issue to be resolved in this case is whether or not the Appeal Board erred in dismissing the applicant's appeal on the ground that the selection process was carried out according to merit.

4. Analysis

It is well established that the merit principle embodied in section 10 of the Public Service Employment Act⁽¹⁾ ["the Act"] requires that the best persons possible be selected for appointment to positions in the Federal Public Service⁽²⁾. Selection according to merit is the dominant objective of the Act and the essential criterion by which the exercise of powers under the Act is to be judged⁽³⁾.

The Appeal Board's role or function is to conduct an inquiry in order to determine whether the Selection Board made its choice in such a way that it was a "selection according to merit". If the Appeal Board concludes that the Selection Board met this requirement, it must dismiss the appeal⁽⁴⁾.

A Selection Board is defined as an instrument used by the Public Service Commission to perform its duty to select candidates on the basis of merit⁽⁵⁾. Jurisprudence has established that its role is to access the candidates and choose the ones they feel are most qualified for the position on the basis of merit"⁽⁶⁾. It is purely an administrative board and therefore is not subject to the rules of natural justice, such as audi alteram partem, but it is bound to carry out its functions fairly, honestly and impartially⁽⁷⁾.

A Screening Board is defined as an instrument of the employing department set up to prepare the Selection Board for its deliberations⁽⁸⁾. This Court has held that it may not apply criteria that are different from those that have been promulgated and advertised. It may, however, to a limited degree, develop further criteria defining qualifications already contained in an SOQ, provided that this exercise does not contravene the merit principle and is performed at an appropriate time⁽⁹⁾.

It is interesting to note that the Act is silent as to the creation of either boards, while the Public Service Employment Regulations⁽¹⁰⁾ ["the Regulations"] refer only to "Selection Boards". The Screening Board is nowhere mentioned either in the Act or the Regulations. It is a bureaucratic creation.

The basis decision in this matter is Bambrough v. P.S.C.⁽¹¹⁾, canvassed more recently in A.G. of Canada v. Blashford et al.⁽¹²⁾, in which the Federal Court of Appeal held that the Selection Board erred in imposing additional requirements, a function that was within the exclusive prerogative of management. On that very point, Marceau, J.A. had this to say [at page 225]:

But the real objection I have with the thinking of the Appeal Board is more fundamental. As I understand the scheme of the Act, the "merit principle" is meant to govern the selection process that the Public Service Commission will follow in the exercise of its duty to judge and rank the candidates; it has no role to play in the establishment of the basic qualifications to be admitted to participate in the competition, the establishment of which is the exclusive prerogative of the Department.

I simply do not think, again in my understanding of the scheme of the Act, that the Public Service Commission or its "agent", the Selection Board, has the authority to tamper with the basic qualifications prescribed by the Department by adding to them or changing part of them in such a way as to limit the factors which could come into play in the judging and ranking of the candidates.

The learned judge then referred to the Bambrough decision in these terms [at pages 225 and 226]:

It is true that in Brambrough v. Public Service Commission, [1976] 2 F.C. 109; 12 N.R. 553, and again more recently in Boychuk v. Public Service Commission Appeal Board [1982], 42 N.R. 204, this court has refused to intervene in cases where elaborations of, or amendments to, basic qualifications [that could be seen as new qualifications] had been introduced after selection had begun. But it was found in those cases: first, that the additional requirements had been made with the active participation of the Department [in both cases by a so-called "screening board" set up apparently to prepare the Selection Board for their deliberations); second, that, as expressed by LeDain, J., in the Bambrough case [p. 117 of the F.C. report], "the statement of such additional qualifications [had afforded] a sound basis for a process of selection according to merit", and third, that the adding of the further requirements had not had, in practice, the effect of unduly prejudicing the complainants. The situation here is quite different: the decision to restrict the scope of a basic requirement - expressed by the Department in terms left open to practical and relative appreciation - by introducing rigid temporal criteria was made by the Selection Board itself and alone; the restriction could obviously not afford a sounder basis for selection according to merit, its sole effect being to render more mechanical and more restrictive the screening process; and finally, there were candidates like the respondents who were certainly prejudiced by the newly created "road-block", since they were automatically eliminated from the competition when their experience could not readily be said not to have been "considerable" enough to the admitted and, indeed, could very well have been, in fact, more valuable and meritorious than that of admitted candidates.

His colleague Décary, J.A. defined the two conditions imposed by Bambrough for amending the qualifications for a position while the selection process is in motion [at page 226]:

Bambrough has decided, in my view, a] that the qualifications for a position, while generally established by a department before the selection process has begun, may be validly amended by a department after a selection process has begun provided the change is not a device for giving one candidate an unfair advantage over others and is no more than a reasonable elaboration of a requirement suggested by the original statement of qualification; and b] that the Commission may participate in the making of such an amendment provided the decision-maker continues to be the department.

He further qualified the ambit of the Bambrough decision as follows [at pages 227-228]:

... It would be incorrect to infer from Bambrough that the sole presence of a representative of the department concerned on a screening board or on a selection board enables that board to add qualifications to those already established by the department.

To the extent, therefore, that the Commission does have the power to "participate" in the establishment of qualifications once the selection process has begun, Bambrough would be authority for the proposition that the Commission may at the most be involved in a mere reasonable elaboration of the requirements suggested by the original qualifications.

In the case at bar, contrary to the allegations of the applicant, the additional requirements brought in by the so-called Screening Criteria were not the creation of the Selection Board [an agent of the Commission] but of the Screening Board [representing the Department]. The confusion is understandable as the same members staffed both Boards and merely changed hats after the screening and before the selection. Thus, it cannot be said that the decision to redefine the scope of the basic requirements was made by the Selection Board contrary to the intentions of the Department involved.

Moreover, I cannot see where the added qualifications, having been brought at the appropriate time, would not have been a sound basis for a process of selection according to merit. It was within the inherent powers of the Screening Board to redefine the requirements already established by the department in the SOQ. The Screening Criteria document was a mere elaboration of the previous criteria. There is no evidence, and indeed no allegation, that the added qualifications were brought in as a device for giving one candidate an unfair advantage over others.

5. Conclusion

The courts have previously held that judicial review under sections 18 and 18.1 of the Federal Court Act in cases of appointments to positions under the Act should be made with great restraint. This principle complies with the fact that Parliament and the courts have sought to respect the administrative and practical aspect of the decisions required in the effective operation of any organization. The expertise of people in a specific field is not to be taken lightly and the courts will only intervene in cases where there is an error of the kind described in section 18.1 of the Federal Court Act⁽¹³⁾.

The question whether the merit principle was affected by the selection process is one of fact to be determined in each case. In the case at bar, after reviewing all the evidence, the Appeal Board Chairperson concluded that his intervention was not warranted. He properly considered that the experience requirements established by the Screening Board were reasonable in view of the duties to be performed and the level of responsibility which was incumbent to the position. Although there were some discrepancies in the selection process, the Appeal Board found that the selection was according to merit.

Thus, I conclude that it was open to the Board to decide as it did, and that such a decision was reasonable. Consequently, the application is denied and the decision of the Appeal Board confirmed.

Ottawa, October 12, 1994

J.E. Dubé, Judge

____________________

1. R.S.C. 1985, c. P-33.

2. Greaves v. Public Service Commission Appeal Board, [1982] 1 F.C. 806 at 810 [Leave to Appeal to the Supreme Court of Canada denied]; Public Service Alliance of Canada v. Her Majesty the Queen in right of Canada, Unreported Judgment of F.C.T.D., Court File No. T-1201-90, January 30, 1992 and Nanda v. Appeal Board Established by the Public Service Commission, [1972] F.C. 277 at 297.

3. Bambrough v. Public Service Commission, [1976] 2 F.C. 109, at 117, per LeDain J. [C.A.].

4. Ratelle v. Public Service Commission et al., [1977], 12 N.R. 85 at 87 [C.A.].

5. Evans v. P.S.C. [Appeal Board], [1983] 1 S.C.R. 582 at 596, per Estey, J. applying Blagdon v. Public Service Commission, [1976] 1 F.C. 615 [C.A.].

6. Ratelle v. Public Service Commission, supra, note no. 4, at 87.

7. Evans v. P.S.C. [Appeal Board], supra, note no. 5 at 596-97.

8. Canada [A.G.] v. Blashford et al., [1991] 120 N.R. 223 at 225, per Marceau, J.A. [F.C.A.] and Bambrough v. Public Service Commission, supra, note no. 3 at 117.

9. Blashford et al., supra, note no. 8 at 225-226.

10. C.R.C. 1978, c. 1337; revoked SOR/93-286 [Gaz. 16/6/93, p. 2653].

11. supra, note no. 3.

12. supra, note no. 3.

13. Pierre Beauchamp v. Lucie Baillargé et al., T-1328-93, decision dated March 22, 1994, Joyal J. at 7.