Patel

Parties/Partis: Nandu Patel, Applicant and Public Service Commission of Canada, Respondent
Court # Cour: T-2038-93
Judgment/Jugement Date:94-04-14

Reasons for Order

Cullen, J.:

This is an application for judicial review of a decision of the Public Service Commission Appeal Board ["Appeal Board"], dated July 19, 1993, in which it dismissed the appeal of Ms. Nandu Patel, the applicant. Ms. Patel appealed pursuant to section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 as amended by the Public Service Reform Act, S.C. 1992, c. 54 ["the Act"], against the proposed appointments in the selection processes 92-STC-CC-001 and 002 to positions of Economist-Sociologist at the ES-01 and ES-02 levels within Statistics Canada ["Stats Can"]. The applicant seeks an order setting aside the decision of the Appeal Board and referring the matter back for determination in accordance with such directions as the Court considers appropriate.

Background

The applicant applied in two closed competitions within Stats Can's Recruitment and Development Program. The requirement for the ES-01 level position was listed as knowledge of:

[1] theories and principles of economics, sociology or a related social science,

[2] quantitative analytical techniques, and

[3] analytical software for micro-computers.

The requirements for the ES-02 level position were knowledge of:

[1] theories and principles of economics, sociology or a related social science,

[2] quantitative analytical techniques,

[3] analytical software for micro-computers, and

[4] government socio-economic policies and the issues relating to them, and experience in conducting research in relevant field of specialization.

The competition consisted of a written examination to assess knowledge of the above requirements and general written skills and, for the successful candidates, an oral interview to assess oral skills and personal suitability. The written examination consisted of four questions designed by group of eighteen senior Professional and Management Staff of Stats Can. The percentage marks on the written examination needed to qualify for the interview for either level were 70 percent, namely 59.5 out of a possible 85 marks for ES-01 and 66.5 out of a possible 95 marks for ES-02. Of the 74 candidates for the position at the ES-01 level, 62 were allowed to take the examination, and 55 candidates did indeed write it. At the ES-02 level, 68 applied, 58 were allowed to take the exam and 52 did in fact write it. In addition, 86 total candidates applies for both competitions and the number who qualified to write and those who did write were 73 and 65 respectively [Application record, page 109]. The number of candidates who proceeded to the interview stage were: 7 at the ES-01 level, 9 at the ES-02 and 10 at both levels. Four candidates qualified for the ES-01 level and three for the ES-02 level.

Ms. Patel received a mark of 44.1 out of 85 [51.9 percent] for knowledge at the ES-01 level and 52.1 out of 95 [54.8 percent] at the ES-02 level, thus she did not qualify for the interview as either level. It is against the successful appointments that she appealed to the Appeal Board, on April 16, 1993.

Appeal Board's Decision

The decision can be found at pages 191 to 202 of the applicant's Application Record. The Board consisted of the Chairman, Mr. Gaston Carbonneau. The applicant presented an argument consisting of ten allegations against the Selection Board. The Department, Stats Can, filed a response to the allegations which contained a brief summary and the Department's response to each.

After its initial summary of the facts of the dispute as presented before it, the Appeal Board, at pages 196 to 201, quoted at length from the Department's response [the original allegations can be found at page 117 of the Application Record, and the response at page 111]. The opening statement of the Chairman of the Selection Board is found at page 108.

After quoting the allegations and the corresponding responses, the Appeal Board stated, at page 201:

A simply reading of the appellant's allegations and the Department's replies makes it crystal clear that all of the appellant's allegations are without merit.

I wish to add that with regard to the appellant's references to the allocation of marks to her and the successful candidates, it must be borne in mind that it is not my role to assess the answers given by the appellant and the successful candidates on the written examination. I am strictly limited to considering the reasonableness of the Selection Board's assessment of the candidates in the areas that have been identified by the appellant. I wish to emphasize that in order for me to intervene on the basis of the marks awarded, it must be made manifestly clear that the Selection Board was unreasonable [See Blagdon v. Public Service Commission Appeal Board and Barry [1976] 1 F.C. 615 and Re Ratelle, [1977] 12 N.R. 85 [F.C.A.]].

Issues

The applicant suggests that there are five points in issue in this appeal.

1. Did the Appeal Board err in law by holding that the Selection Board was consistent in adding qualifications of knowledge and experience to prescribed selection standards of 92-STC-CC-001?

2. Did the Appeal Board err in fact by holding that the selection procedure was valid, reasonable, adequate, proper, thorough and fair and in accord with the merit principle in s. 10 of the Act?

3. Did the Appeal Board err in fact by holding that the four questions used for the written examination were valid and in compliance with s. 10?

4. Did the Appeal Board err in fact in accepting the response by the Department when the allegations were supported by documentary evidence, which evidence showed that the successful candidates were not truly qualified for the competitions?

5. Did the Appeal Board err in law by overlooking the fact that additional qualifications forprescribed standards for the ES-01 level were not rationally linked to duties performed for that position and therefore improper, unfair, invalid and in direct contravention of the merit principle?

For the record, the respondent characterizes the issue under the simple question of whether the Appeal Board committed a reviewable error under subsection 18.1[4], specifically paragraphs [4][b], [c] or [d], of the Federal Court Act, R.S.C. 1985, c. F-7 [as amended to S.C. 1990, c. 8].

Applicant's submissions

In her supplemental application record, the applicant summarizes her submissions on the various questions of the written examination. She organizes her submissions by question number which I will review in the same order.

Her first submission concerns questions I[ii] and III[iii]. She submits that the assessment of the answers of the successful candidates was inadequate, and that her answers were more comprehensive and thorough than those candidates. She argues that the Appeal Board had supporting documents to support this contention and erred in law and denied the applicant natural justice by not inquiring into the comments made on her examination. The argument centres around the marking of her answer with respect to the statistical software package SAS, and the comments by the examiner with respect to the lack of response by the applicant on the use of spreadsheets or WordPerfect to the question. The applicant argues that her mark was insufficient because her answer contained a description of SAS as taken from the SAS Institute, from which she successfully completed a training course, and the mention of WordPerfect and Lotus [a spreadsheet package]. She thus submits that the examiner misread or did not understand her answer, possibly due to his lack of knowledge of SAS and that the Appeal Board erred in not inquiring into this error.

She further submits that the successful candidate, Ms. Sewards, was awarded a higher score on these questions because of her experience with the software package in question, but that the examination was only intended to assess knowledge. Thus, she submits that relying on work experience violates section 12 of the Act because the statement of qualifications contains the prescribed standard of knowledge and therefore, the term "familiarity" should not include familiarity acquired through experience with the software. Thus, she argues that since the marking scheme was not applied uniformly and fairly, the result is contrary to sections 10 and 12 of the Act and therefore, the Appeal Board erred in allowing the Selection Board to change the selection standards [she cites: A.G. [Canada] v. Greaves et al., [1982] 1 F.C. 806].

The applicant submits that the entire question II tests the knowledge of candidates for the ES-01 level in an area which is inconsistent with the prescribed selection standards. She submits that the question tests the knowledge and experience of ES-01 candidates in a manner consistent with the ES-02 level. The applicant, for example, points to the text of question II, at page 47[2] of the Applicant's Record, and specifically the words "programs" and "measuring and assessing" within parts [ii] and [iii] of the question respectively. She then argues that the published ES-01 qualifications do not require any knowledge of programs or the measuring or assessing the results of such programs and that these qualifications are not related to the job performed by an employee at the ES-01 level.

Thus, the applicant argues that the Selection Board erred in changing the qualifications for the ES-01 position and that the Appeal Board erred in accepting the Department's "self-serving" response to her allegation and in not inquiring further into the procedure which she contends violated the meritprinciple for the ES-01 candidates. [She cites the following cases: Delanoy v. Public Service Commission Appeal Board, [1977] 1 F.C. 562, Irwin v. Public Service Commission Appeal Board, [1979] 1 F.C. 356, Madracki v. H.M.Q. [1986], 72 N.R. 257 [F.C.A.], Brown v. Public Service Commission, [1975] F.C. 345]

She further submits that since the candidates were not informed of the rating guide being used to mark the questions, they could not provide informed responses to the questions, nor could they know how to answer the question in accordance with the level for which they were applying, be it ES-01 or ES-02. The gist of her argument seems to be that since the same question was used to assess merit at both levels, it was unfair and in contravention of the merit principle.

With respect to question III, she argues that the example used in the question, namely statistics of tonsillectomies, added the knowledge of tonsillectomy to the knowledge requirements in the prescribed standards and therefore breached the merit principle as knowledge of tonsillectomies is not part of the requirements for an ES-01 position. This is particularly true given the fact that the applicant could not find any data or mention of the subject of tonsillectomies within the health statistics compiled by Stats Can. She further argues that the examiner for this question adopted her own independent style of grading the scores for each answer. Thus, she submits that the Appel Board erred in fact by accepting the department's response that the markers took a variety of steps to ensure consistency in their approaches.

With respect to the grading of scores, the applicant argues that a review of her answers and those of the successful candidates shows that there was no consistent approach to the grading, particularly as between Mr. Rhodes and Ms. Gentleman on question III. She refers to a note on the model answer, at page 56 of the application record, which states that the total points for papers marked by Ms. Gentleman were multiplied by a factor of 2.5 to get the resulting mark out of 25. Therefore, she submits that the Appeal Board, which had a duty under s. 21 of the Act to ensure that the Selection Board performed the selection task in a manner consistent with the merit principle and the published selection standards, erred in not inquiring further into the process used.

She submits that the Appeal Board's decision was made in a capricious manner because it did not inquire into the adequacy, appropriateness or justification of the examples used to test knowledge, even in the face of documentary evidence which showed the inadequacies. She further argues that the Appeal Board erred because it did not inquire further into the inconsistencies and lack of uniformity of the marking of the responses, which consistency and uniformity is required by section 12 of the Act [the applicant cites: A.G. [Canada] v. Blashford, [1991] 2 F.C. 44, Cleary v. P.S.C., [1973] F.C. 688, and Lebarge v. A.G. [Canada], [1988] 2 F.C. 142].

With respect to Question IV [B][i] and [ii], the applicant submits that the Appeal Board erred in refusing to exercise its jurisdiction under s. 21 to inquire further into the response given by the Department to her allegation that the question was open-ended and not in accord with the prescribed standards for the competition, which response she states was made in bad faith.

She further argues that the Department Staffing Manuals were used to validate the questions, rating guide, grading schemes and selection procedure but that the manuals do not have the authority of law and that the justification does not comply with the merit principle [she cites Bambrough v. P.S.C., [1976] 2 F.C. 109 in support].

The applicant then submits that the test employed colloquial use of the English language and that such use violated the requirements of section 16[2] of the Act, in that the language was not standard or official English or French. As an example, the applicant quotes from question IV[B] which states [at page 49]:

Statistics Canada's economic indicators are frequently used by the media to measure Canada's economic health. Social indicators are rarely the subject of such reports. [emphasis added by applicant]

She submits that the colloquial use of the English language such as in the word "measure" posed difficulties for candidates whose mother tongue is not English, since in her interpretation, the media reports, not measures, and therefore this use does not conform to standard or official English. She adds that the Department has admitted to such use in its response to her allegation #8, at page 201 of the application record. Thus, she submits that the Appeal Board erred in law and in fact in overlooking this admission and the use contrary to section 16[2] [relying on Cleary, supra and Tiefenbrunner v. A.G. [Canada], unreported #A-915-91, Federal Court of Appeal].

Further on this question, the applicant argues that her answer was more comprehensive than her marks indicate and that the marking of the question shows a poor job by the Selection Board and the examiner. Since the Appeal Board did not examine the facts of this allegation, she states that it denied her natural justice and allowed the Selection Board to act in bad faith.

Respondent's Submissions

As stated, the issue addressed by the respondent is the general question of whether the Appeal Board committed a reviewable error of fact or law within the meaning of paragraphs 18.1[4][b], [c] and [d] of the Federal Court Act.

The respondent submits that the Selection Board has the duty to select candidates on the basis of merit, and that merit, within the meaning of section 10 of the Act, refers to the natural and intrinsic characteristics of the candidate, including the personality, training and experience of the person. The respondent further submits that the Selection Board within that duty may prescribe the necessary or desirable selection standards [Evans v. P.S.C. Appeal Board, [1983] 1 S.C.R. 582, Re Ratelle [1976], 12 N.R. 85 [F.C.A.]].

As for the duty of the Appeal Board, the respondent submits that its role is to conduct an inquiry into the selection process to ensure that the selection was on the basis of the merit principle and that it is not the Appeal Board's role to substitute its assessment of the merit of a candidate for that of the Selection Board [Lee v. A.G. Canada], [1981] 2 S.C.R. 90, Blagdon v. P.S.C., [1976] 1 F.C. 615 [C.A.]].

Thus, the respondent argues that the Appeal Board did not commit any reviewable error of fact or law because the evidence clearly establishes that the Selection Board's assessment of the candidates' respective merit was in accordance with the prescribed standards in the ES-01 Statement of Qualifications. The respondent submits that the application should be dismissed as the applicant is really seeking an order substituting the Court's opinion for that of the Selection Board.

Counsel for the respondent argues that a simple reading of the Appeal Board's decision shows that itconsidered all the evidence and arguments presented by the applicant and still found that the allegations were without merit. Thus, he submits that there is no error of fact committed by the Appeal Board in this finding, particularly one made in a perverse or capricious manner or without regard to the material before the Appeal Board, as set out in section 18.1[4] of the Federal Court Act. He argues that, although the reasons for its decision were brief, the Appeal Board set out the allegations and the responses to each and was apparently satisfied with the responses offered by the department and that such a finding is within the Appeal Board's mandate.

As to the applicant's arguments concerning a breach of natural justice by the Appeal Board, counsel for the respondent submits that the principles of natural justice, namely the rule of audi alteran partem [an opportunity to be heard] or nemo judex [bias], have been violated here and therefore, it cannot be said that there has been a breach of natural justice in the case.

Analysis

As a preliminary point, counsel for the respondent properly raised the fact that Rule 1603 has not been complied with in this case. That Rule provides that the applicant shall file an affidavit setting out the facts and evidence to be relied upon in the application. Such was not the method followed in the case before me, but the respondent merely raised it as a caveat and did not attempt to argue the point, and with good reason. When the Court is dealing with an applicant who has chosen to represent herself, as Ms. Patel has done here, it would be inappropriate to apply a strict interpretation of the Rules as a means of pre-emptively dismissing the application. While an applicant is expected to be aware of and follow the rules of the Court, every possible and reasonable leeway should be given to allow the applicant to present her case in its entirety, even to the extent of alerting her to her right to reply upon completion of the respondent's submissions.

Section 10 of the Act sets out the merit principle. It reads:

10.[1] Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.

[2] For the purposes of subsection [1], selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.

The relevant portions of section 12 of the Act read:

12.[1] For the purpose of subsection [1], selection according to merit under section 10, the Commission may prescribe standards for selection and assessment as to education, knowledge, experience, language, residence or any other matters that, in the opinion of the Commission, are necessary or desirable having regard to the nature of the duties to be performed and the present and future needs of the Public Service.

[2] No standard prescribed under subsection [1] shall be inconsistent with any classification standardprescribed pursuant to the Financial Administration Act.

Section 21 of the Act, which governs the jurisdiction of the Appeal Board reads in part [omitting those subsections not relevant to this application]:

21.[1] Where a person is appointed or is about to be appointed under this Act and the selection of the person for appointment was made by closed competition, every unsuccessful candidate may, within such period as the Commission prescribes, appeal against the appointment to a board established by the Commission to conduct an inquiry at which the person appealing and the deputy head concerned, or their representatives, shall be given an opportunity to be heard.

[2] Subject to subsection [3], The Commission, on being notified of the decision of the board on an inquiry into an appointment conducted pursuant to subsection [1] or [1.1], shall, in accordance with the decision,

[a] if the appointment has been made, confirm or revoke the appointment; or

[b] if the appointment has not been made, make or not make the appointment.

[3] Where a board established under subsection [1] or [1.1] determines that there was a defect in the process for the selection of a person for appointment under this Act, the Commission may take such measures as it considers necessary to remedy the defect.

There is no question that the role of the Selection Board is to assess the candidates and choose the one they feel is most qualified for the position on the basis of merit. By contrast, the role of the Appeal Board is to review the Selection Board's decision and ensure that its decision was made according to merit. If it was, then the Appeal Board must dismiss the appeal, even if it would have reached a different result had it been the Selection Board [Re Ratelle, supra, at 87, Blagdon, supra, at 623]. It is also well-settled that the Appeal Board established under s. 21 is subject to the rules of natural justice [Evans, supra].

The appeal Board's decision in this case contains virtually no analysis of the applicant's allegations. It fully summarizes the allegations within the context of its review of the department's response and then appears to accept, without reservation, that response to conclude that the merit principle was followed in this case. Although the decision states that the Appeal Board considered all the evidence before it, there is no specific reference to the material save for within the context of the summary of the allegations as quoted from the Department's response. It would have been better and certainly more helpful to this Court on judicial review of the decision if the Appeal Board had taken the time to outline the arguments and commented on each in turn. Not doing so may be a disservice to the applicant but, in the circumstances of this case, does not amount to a reviewable error of law within the context of section 18.1[4].

The applicant has raised some good points which warrant comment. With respect to the use of colloquial language by the Selection Board in its questions, the response by the department did contain an admission to the use of colloquial English. At page 9 of the Appeal Board's decision [page 200 of the applicant record], in response to allegation #8, the Appeal Board quotes from the response as follows:

The appellant also challenged the Selection Board's use of the phrase "economic indicators are used by the media to measure Canada's economic health". This was an entirely appropriate colloquial use of the term "to measure." In this case, the Selection Board was not proposing the term "measure" as a technical term.

The Appeal Board does not comment on this admission, but I am not convinced that is fatal to the decision. In the case cited by the applicant, Tiefenbrunner, supra, the Court of Appeal allowed an appeal where the Appeal Board had clearly misinterpreted an admission by the Selection Board in order to find that the merit principle had not been violated. In the case at bar, I do not believe that the use of common colloquialism such as "measure" in the context of the question, as stated above, demonstrates a violation of section 16[2] of the Act, in that it is "non-official" or non dictionary English nor does it constitute a violation of the merit principle. Accordingly, there can be no error of law in the Appeal Board accepting the department's response to this allegation.

The application argues that the marking of Ms. Gentleman on question III was an independent, inconsistent and non-uniform approach to grading and therefore in violation of the selection process. She further submits that the Appeal Board failed to inquire into this allegation, particularly given the evidence as alluded to above. However, it is within that evidence that the applicant's answer lies.

As can be seen from a review of the grading of the written examinations and the note accompanying the model answer rating guide, the inconsistency was merely in the numerical formulation used by Ms. Gentleman. Simply put, she marked out of ten, whereas the final mark for the question was to be out of twenty-five; hence the correction factor of 2.5. This necessary conversion does not demonstrate any error in the grading of the papers nor does it demonstrate any inconsistency in the substantive evaluation of the applicant's paper.

Throughout her argument, the applicant asserted that the Appeal Board had the duty to inquire further into the selection process to properly address her allegations. While the Appeal Board does have such a duty, it is important to understand the scope of that duty. As stated by Jackett C.J. of the Court of Appeal in Cleary, supra, at 689:

An inquiry under section 21, in my opinion, calls for the Appeal Board taking the necessary steps to obtain the documents and information obviously necessary to test the appellant's complaints to the extent that such documents or information are readily available to it.

Similarly in Lebarge, supra, and Blashford, supra, the Court of Appeal has held that the inquiry is only to be to the extent of answering the question of whether the merit principle was respected in the selection process. Thus, I do not believe that there is any greater burden placed on the Appeal Board to conduct an inquiry into the applicant's allegations once it has reviewed all the material available and concluded, as it did here, that the merit principle in section 10 has not been violated. As I have said, and as is obvious from the applicant's submissions, the lack of analysis by the Appeal Board may lead one to the conclusion that no such inquiry was conducted. However, as the material was before the Board, and was referred to, albeit in a less than perfect manner, there cannot be said to be a reviewable error in this case.

I am similarly not convinced that the Selection Board added to the statement of qualifications and thus breached the merit principle, as alleged by the applicant. The applicant is correct in her interpretation of the role of the Selection Board and the fact that it may not establish qualifications fora position above or beyond those established by "...others and in accordance with selection standards prescribed by the Public Service Commission" [Madracki, supra at 258, and Irwin, supra at 363]. Further, it is necessary to keep in mind the distinction between "qualifications" and "selection standards" in the context of a competition such as at issue here and the allegations raised by the applicant. As stated by Jackett C.J. in Brown, supra at 372 [and quoted with approval in Irwin, supra at 362] while commenting on the use of selection standards as qualifications:

Ordinarily, one would have thought that "qualifications" required to perform the duties of a particular employment and the "selection standards" used under regulation 7[4][a] to assess "relative merits" of "applicants identified as candidates" because they have been found to meet those "qualifications" would be two quite distinct things.

The examples referred to by Ms. Patel as support for the proposition that the knowledge requirement of the ES-01 position was in some way augmented do not convince me of that fact, as the Appeal Board was similarly not convinced. For example, the use of tonsillectomy rates as an example for a statistical question, though I do not believe that such an example was the best choice for a written examination in this type of competition, did not actually place an additional requirement of knowledge on the candidates. It was intended as an example of rates which could be statistically treated, and regardless of whether such rates are in fact gathered by Stats Can, it is not my position, nor that of the Appeal Board, to suggest a better example. As long as the example did not add to the requirements of the job, which I believe it did not, the merit principle is not violated by an ill-advised choice.

The same can be said for the use of the same questions to assess candidates at different levels, namely ES-01 and ES-02. While separate examination questions may be preferable, it is within the role of the Selection Board and the Commission, within the framework of the merit principle and the job qualifications, to choose the methods of evaluation best suited to the positions which are the subject of the competitions. As long as those methods do not violate section 10 of the Act, it is not an error reviewable by the Appeal Board. Similarly, if the Appeal Board makes this finding based on the evidence before it, as I am convinced it did here, then there is no reviewable error upon which this Court may quash the decision.

For all of the above reasons, and based on the material before me, the application for judicial review is dismissed.

Comments with respect to unrepresented applicants

It is never easy for the Court to deal with a matter when one side is not represented by counsel. I want first of all to commend Mr. G. Villeneuve, counsel for the respondent, for his courtesy to the applicant and to the Court when listening to the applicant and presenting his own case. He politely drew attention to the fact that Rule 1603 had not been compiled with in this case but did not press the issue.

The applicant in presenting her case did an admirable job in the circumstances. She obviously knew her subject and gave the Court and the respondent a comprehensive treatise of her argument. The Court was impressed with the courteous and intelligent manner in which she proceeded, and it escapes me, if I heard her correctly, why she is presently unemployed. Even at a time of high unemployment in Canada, it seems to me that a person with the talents displayed in the courtroom bythis woman should be able to find employment in his/her chosen field which I am satisfied will be a plus for Canada.

Ottawa, April 14, 1994

B. Cullen, J.F.C.C.