Munsch

Parties/Partis: Marie Hélène Munsch, applicant, and: Attorney General of Canada, respondent
Court # Cour: T-2895-92
Judgment/Jugement Date: 94-11-04

Order and Reasons for Order

Joyal J.

The applicant applied to this Court for an order quashing a decision of the Public Service Commission Appeal Board made on October 27, 1992. That decision dismissed the applicant's appeal of the appointments proposed following the selection process held to fill the "inspector developmental" positions in the Department of Consumer and Corporate Affairs.

The hearing of the applicant's application was to take place in Montréal on October 25, 1984. A few days earlier the applicant, who was residing in France, notified the Registry of the Court that it would be impossible for her to appear personally. However, she had provided for such an event and in fact agreed to the case being heard under s. 324 of the Federal Court Rules. The Court then obtained the respondent's consent to proceed in this manner. The application for judicial review was accordingly considered on the basis of the respective submissions of the parties and without a personal appearance.

Facts

In June 1991 the applicant agreed to move from Québec to Montréal to take a one-year training course as an inspector developmental [PM-01]. The applicant was accompanied by two other candidates. The purpose of this training was to give them an opportunity to become candidates for PM-02 and PM-03 positions, that is, positions of ordinary inspector and food specialist. In March 1992 the applicant submitted her candidacy for the PM-02 position in the Department of Consumer and Corporate Affairs. Candidate selection was in three parts, a written exam, an oral interview and the assessment of personal suitability, made by the respective managers of each candidate, namely their immediate supervisors.

In particular, the qualifications required for the position were listed as follows:

Education: Successful completion of a post-secondary educational diploma in a science related to manufacture or processing such as food, textiles, applied physics and gemology.

Experience: Summary experience in the field of inspection or quality control or manufacturing in an area related to consumer products.

Knowledge:

- Knowledge of departmental environment, objectives and priorities;

- Knowledge of statutes and regulations affecting consumer products;

- Knowledge of procedures, methods and techniques associated with inspection and enforcement of statutes and regulations;

- Knowledge of food sciences, chemistry, mathematics and physics needed to understand methods and techniques used by the consumer products activity and characteristics of composition of productscovered in the previous metals and textile fields;

- Knowledge of sub-activity management information system.

Personal suitability:

- Cooperative approach;

- Motivation;

- Judgment;

- Initiative;

- Good interpersonal relations;

- Adaptability;

- Professionalism.

The qualifications required for the position were considered by a selection board. The applicant was found fully qualified except as to personal suitability, for which she received a 50 percent grade whereas the minimum was set at 60 percent. As a result, by failing the personal suitability aspect her name was not included in the eligible list for the competition.

During her training period the applicant claimed she found that the inspectors were giving false measurements or requesting corrections not specified by the legislation, or that they were acting in an "inhuman way toward merchants faced with economic problems". She also alleged the existence of collusion between her managers, who she said wanted to get rid of her. For these reasons the applicant challenged her failure in the PM-02 competition and filed a grievance under s. 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33, against the appointments proposed as a result of the selection process.

At the hearing held before the Appeal Board, the applicant alleged that where personal suitability was concerned the selection board had not observed the marking scale, her immediate supervisor had reported maliciously distorted facts and he had not warned her of the problems she was supposed to have, let alone urged her to improve herself.

Appeal Board Decision

In its decision of October 27, 1992 the Appeal Board concluded that the selection process as it related to the assessment of personal suitability had been proper and that the assessment of the applicant was fair and equitable. The Appeal Board further noted that the supervisor had told the applicant of her shortcomings several times, that he had acted in good faith and that his report was fair. In particular, the Appeal Board said the following:

I consider that the Department was able to show that the selection respected the merit principle at all times. It showed me that the appellant's qualifications were fairly and equitably assessed.

The Appeal Board had the following to say about the assessment method:

We find no obligation to adopt a particular method of assessment or weighting grid. All the Commission requires is that good judgment be used to include the necessary information according to the importance of each of the qualifications considered ... I found nothing illogical in the assessment methods used by the selection board, which accepted a passing grade for each of the personalqualifications required but, for personal suitability as a whole, required that each candidate in this competition receive a 60 percent grade. What that means is that the Board could approve the candidacy of an individual who in the Board's judgment had quite significant deficiencies [less than five out of ten] on one of the specified qualifications but whose other qualifications adequately compensated for this. There is nothing unreasonable in this weighting approach.

Points at issue

Since the applicant did not identify specific points at issue, I will deal with the points as they were raised by the respondent.

Preliminary

Is the evidence submitted or filed at the Appeal Board hearing admissible in the case at bar?

Issue

[a] Did the Appeal Board render a decision based on an erroneous finding of fact arrived at in a perverse or arbitrary manner or without taking into account evidence before it?

[b] Did the Appeal Board render a decision based on false testimony?

Applicant's Position

The applicant submitted a lengthy brief consisting of seventeen pages of argument to the effect that the selection standards established under Public Service Employment Act were not conscientiously applied. She further submitted that the assessment was made with the aid of incomplete and distorted hearsay, that her qualifications were improperly assessed and that the process was unfair to her, as an antagonistic relationship existed with her immediate supervisor. Further, she argued that the Appeal Board exceeded its jurisdiction when it ruled itself that the candidate "should seriously rethink her interpersonal relations". In view of the broad scope of the arguments submitted by the applicant, I will consider those which have the greatest merit.

The applicant was unfairly assessed

Selection standards and cutoff point: The applicant alleged that the selection standards did not adequately reflect the candidates' merit. She argued that several appeals had been filed and allowed for competitions held by the Department of Consumer and Corporate Affairs. In particular, the applicant challenged the validity of the marking grid for the assessment of personal suitability. This assessment is especially crucial since a candidate must satisfy this requirement and has to get a total of 60 percent. The applicant accordingly submitted that the cutoff point is arbitrary and does not reflect the well-established principle that "all information must be combined so as to identify the best qualified candidates". Moreover, the grade "satisfactory" [5-6] clearly shows that the candidate's qualifications are sufficient to permit a satisfactory result. In short, the applicant contended that unless there are serious grounds for making personal suitability a requirement all the information should have been combined, that is, only the overall grade should have been used to determine whether the candidates had the necessary skills for the desired position. Moreover, she noted that only relations with work colleagues were assessed by the selection board and that relations withcustomers were omitted. In short, the applicant alleged that if the Board had used more appropriate methods in the selection process, that is, had used information from various sources, it is likely she would have obtained the required grade.

Special circumstances in appraisal of applicant: She was not assessed on the same conditions as the other candidates in view of the delay in her assessment and the existence of a problem in the district where she was working. She argued that her supervisor had used the competition to dismiss her, as the "chicken incident" indicated. There had thus been concerted action between the three managers, who had all given the applicant bad grades in her assessment. Accordingly, the applicant submitted that the Board failed in its duty by not checking several sources [see Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582]. She further alleged that the Board relied on hearsay and not on true facts. Finally, she noted that the inspectors did not provide facts on the assessment of her inspections, but personal judgments.

Absence of directions: The applicant alleged that her supervisors never told her that she should not intervene in conversations between an inspector and a merchant. Accordingly, since she was never told, she could not alter her conduct. The applicant further noted that she was blamed for speaking up at the inspections of her supervisors, but that this conduct was tolerated from certain other inspectors.

Applicant's personal characteristics: The applicant relied on her good reputation and previous training as showing that she should have succeeded in the assessment of personal suitability. Moreover, she noted that from her origins she was accustomed to expressing herself freely and that she simply exercised her right of free speech in accordance with the Charter of Rights and Freedoms. She repeated that she had demonstrated good judgment, in accordance with logic and common sense, in her inspections. Thus, although she did not claim to be a model of flexibility, she was far from being unaffected by her surroundings.

She accordingly asked this Court to consider whether her appeal had been correctly decided by the Appeal Board.

Respondent's Position

Admission of new evidence

The respondent argued that the applicant had introduced evidence which was not submitted [Exhibits A-10 to A-22] or not filed [A-4 to A-9] before the Appeal Board but which existed at the time of the hearing. The applicant further added to her testimony before the Board and answered the questions of the inspectors, since this evidence should have been filed and the proper questions were not put to the witnesses. The respondent submitted that in Gestion Claude Charest Ltée v. Roynat Inc., [1989] R.D.J. 62, at 63, the Quebec Court of Appeal held that in order to introduce evidence not submitted at trial four conditions should be met: the evidence must not have been available before the trial; it must be absolutely necessary; exceptional circumstances must exit; and the ends of justice must require that the evidence be presented. The respondent submitted that in the case at bar the evidence did not meet these requirements.

Erroneous finding of fact?

First, the respondent noted the "deep-seated reluctance of the Federal Court of Appeal to intervene in questions involving the interpretation of facts, as in Dansereau v. Canada [Public Service Appeal Board], [1991] 1 F.C. 444, at 463. The respondent further alleged that the Court should not intervene unless the facts indicated that only one outcome was possible in the case and any contrary decision would be regarded as unreasonable [see Commonwealth of Puerto Rico v. Hernandez, [1973] F.C. 1206, at 1208]. The respondent further alleged that the Board's decision to disregard certain facts and give greater weight or credibility to certain testimony did not necessarily make its decision unreasonable or arbitrary.

Conclusion based on false testimony?

The respondent submitted that the fact that the testimony of the applicant's colleagues differed from her own did not make theirs false. Further, the fact that a witness forgot to mention certain facts did not make his testimony false. It should also be noted, the respondent submitted, that these witnesses were cross-examined at the hearing before the Appeal Board. The respondent also pointed out that the inaccuracies in the testimony clearly indicated an absence of collusion between the supervisor and his employees. In short, the respondent argued that far from demonstrating the existence of false testimony, the applicant seemed actually to be challenging the evidentiary weight given by the Board to the testimony of various persons. An error of fact was therefore not the issue.

Conclusions

Before dealing with the issue itself I must address the question raised by the respondent as to the admissibility of certain new evidence. As Cullen J. observed in Patel v. Canada [Public Service Commission], not reported, T-2038-93, dated April 14, 1994, at 11, when an applicant decides to represent herself the rules should not be strictly applied. Some flexibility should be allowed so that the applicant can present the merits of her case. In the circumstances, I am not prepared to exclude the new evidence automatically, but will rather consider it in terms of its evidentiary weight or relevance.

As the courts have often held, judicial review of an employment under the Public Service Employment Act should be undertaken with great restraint. In so doing, this Court will only intervene if there is an error as described in ss. 18 and 18.1 of the Federal Court Act.

A brief review of the applicant's curriculum vitae indicates that she has extensive knowledge in the field of nutrition. The applicant obtained her doctorate in food science and technology from Laval University and her doctorate in nutrition and food from the Université de Dijon in France. However, several inspectors who were with the applicant during her training period testified that the applicant appeared to lack tact, diplomacy or judgment in her verbal comments, which led to a bad working atmosphere. Accordingly, her immediate supervisor concluded that the applicant did not have the personal suitability for the position and this decision was upheld by the Appeal Board. Was that decision vitiated by an error of fact or of law?

It is a well-settled rule that the function of a selection board is to assess the candidates and choose those it considers to be best qualified for the position to be filled. The function of the Appeal Board, on the other hand, is to ensure that the merit principle was observed and to determine whether there were any irregularities in the selection process [see the following judgments of the Federal Court of Appeal: Caldwell v. The Queen, [1978] 25 N.R. 458, at 459, and Laberge v. Canada, [1988] F.C.137, at 143]. If the merit principle has been observed, the Appeal Board must dismiss the appeal even if it would not have come to the same conclusion, as indicated in Ricketts v. Department of Transport, [1983] 52 N.R. 381, at 382. First, the Appeal Board correctly found that it could not substitute its own weighting grid since the choice of requirements is an administrative matter under the jurisdiction of the Minister [again see Ricketts, supra, at 382]. Second, in the selection process, personal suitability was regarded as essential. Unfortunately the applicant did not meet the minimum requirement. Accordingly, the Board correctly found that there was no irregularity in the selection process and the assessment of the applicant's personal suitability.

I also consider that, based on the evidence submitted in the case at bar, the Appeal Board made a reasonable decision in its assessment of the merit principle. Merit is not determined in a vacuum, but in accordance with selection standards laid down by the Commission which here included the assessment of personal suitability. The Board thus considered the personal suitability of the applicant and the other candidates in accordance with the standards set for the position. It should further be noted that there was a variety of means of assessing the skills of each candidate, namely written tests, an oral interview and an appraisal of the candidates' performance during the training period. Accordingly, all relevant information was combined so as to identify the best qualified candidates.

As was noted in Re Patel [supra], the inquiry undertaken by the Appeal Board is limited to obtaining documentation and information necessary to decide the complaint. Accordingly, the Board does not have a duty to undertake a far-reaching inquiry into all the allegations made by the applicant once it has assessed the evidence submitted. In the case at bar the witnesses were examined and cross-examined. The Appeal Board preferred to believe the witnesses who gave specific examples of inadequate conduct by the applicant. With respect, since the Board which was the judge of fact ruled on a question of credibility, I consider this Court should not intervene.

It is clear from reading the applicant's submission that she is a person of great ability and that she was able to adjust in a remarkable way to the legal discipline imposed in a judicial review proceeding. For this she deserves the congratulations of the Court. It is therefore especially unfortunate that the applicant could not find a means of correcting the situation through her reference to the Court and relieving the frustration which she may have felt. Perhaps at some point she found herself in a situation in which her academic qualifications exceeded the particular requirements of the position or the necessary skills. However, the Court cannot indulge in speculation. The Court has its own rules which it must follow and these lead it to conclude that the decision a quo was correct and should be upheld.

Order

The application for judicial review is therefore dismissed.

L. Marcel Joyal, J.

Ottawa, Ontario, November 4, 1994

Certified true translation, T.V. Helwig