Hammond v. Canada (Attorney General)

Hammond v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2009-06-02
Neutral citation
2009 FC 570
File numbers
T-674-08
Decision Content
Federal Court
Cour fédérale
Date: 20090602
Docket: T-674-08
Citation: 2009 FC 570
Ottawa, Ontario, June 2, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
COLLEEN HAMMOND
WILLIAM WESTCOTT
and GENEVIEVE GIBBONS
Applicants
and
ATTORNEY GENERAL OF CANADA
and THE PUBLIC SERVICE COMMISSION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the April 1, 2008 decision (Decision) of the Public Service Staffing Tribunal (Tribunal) to dismiss the complaints brought by the Applicants against the Respondents. The complaints alleged abuse of authority in assessments of merit in an internationally advertised appointment process by Service Canada in St. John’s, Newfoundland.
BACKGROUND
[2] The new Public Service Employment Act, 2003, c. 22 (Act) came into force on December 31, 2005 as part of the Public Service Modernization Act, 2003, c. 22. The modernization initiative was the first major legislative change to public service human resources since 1967.
[3] The objective of the new Act was to reform the old staffing regime which was thought to be too complex and slow. The new staffing system allowed managers to fill vacancies with qualified people in a timely fashion so that the public service could carry out its role of serving Canadians. The new system no longer used “competitions” or concepts such as “relative merit.” The focus was, rather, on finding a person who was a good fit for the job as determined by the Deputy Head of each department.
[4] The Applicants are employed at the Department of Human Resources and Social Development Canada (HRSDC): Ms. Hammond is a PM-03 Insurance Program Advisor; Mr. Westcott is a PM-02 Employment Benefits Officer; and Ms. Gibbons is a PM-02 Program Officer.
[5] On June 13, 2006, HRSDC posted a Job Opportunity Advertisement for certain PM-04 Regional Consultant Positions in St. John’s, Newfoundland.
[6] The Applicants participated in a selection process for the Regional Consultant Positions which required a reference. The issue before the Tribunal was related to the references received on behalf of Ms. Hammond in respect of “Personal Suitability- Working with Others” and by Mr. Westcott and Ms. Gibbons in respect of “Abilities-Relationship Building.”
[7] The Reference Check Instructions applied to all qualifications and were on the first page of the package provided to the referees. There were several elements for each qualification assessed. The Instructions asked for specific examples for each qualification and read as follows: “Please provide your comments to illustrate how this candidate has demonstrated the following abilities and skills in their work. Specific examples of situations should be provided in support of each qualification.”
[8] The Applicants allege that the assessment board required that each element had to be addressed in order for the reference to adequately assess merit. None of the referees provided specific examples for each element. The references failed to provide examples with respect to certain elements, although global comments related to all elements were provided.
[9] Where a qualification element was not commented on specifically, the Applicants allege that the assessment board considered the element unassessed and disregarded the positive global comments which praised the Applicants in respect to all, or several, of the elements associated with the qualification. There was no request by the assessment board to have the referees resubmit the references or to seek clarification on any of the references. The Applicants were screened out of the appointment process and lost their promotional opportunity.
[10] Ms. Hammond was found not to meet the “Working with Others” qualification. Her answers at the oral interview were rated as “low-fair” and the answers provided by her reference checks were rated as “fair.” The assessment board commented that “Reference was fair. Didn’t address PS [personal suitability] sufficient to show better than fair competency in this area. Overall rating L. Fair.” The assessment board awarded a score of 30, the lowest score in the “fair” range, for Personal Suitability. Her reference read:
Colleen is very good in this area. She is a good team player + is very open + honest in her dealings with people. She has a high level of integrity + is very respectful of others’ opinions. Conflicts may fluster her somewhat + she may avoid [sic] rather than face head on.
[11] The assessment board found that Mr. Westcott did not meet the “Relationship Building” qualification. His answers at the oral interview were rated as “poor,” and the answers provided by his reference checks were rated as “fair.” The assessment board commented on the reference as follows: “reference provided only 3/7 elements. Overall rating-low fair.” The assessment board awarded a score of 50 in the “fair” range for Relationship Building. Mr. Westcott’s reference read as follows:
When I was managing the SCC in St. John’s Bill was involved with a liaison in the disabled community and was instrumental in building strategic alliances and in gathering intelligence on issues. His efforts in this area were important in ensuring our services were responsible to client community needs. Bill also established working relationships with the EAS network. This was crucial in ensuring effective client service. He provided them with the information required to ensure that they provided the best service possible to their clients. Bill had strong working relationships with his peers and supervisor. He displayed interest in the activities in [sic] others and lent his knowledge and experience when appropriate.
[12] The assessment board found that Ms. Gibbons did not meet the “Relationship Building” qualification. Her answers at the oral interview were rated as “low-fair” and the answers provided by her reference checks were rated as “mid-fair.” The assessment board commented that the “Reference did not address the 7 expected elements. Points to candidate’s sense of co-operation and professionalism, but largely did not address key elements under this ability.” The assessment board awarded a score of 50 in the “fair” range for Relationship Building. Ms. Gibbons’ reference read as follows:
Genevieve throughout this pilot initiative demonstrated that she works well with a variety of individuals. She worked closely with staff of the JATE office, although trying and confrontational at times, she did persevere and attempt to resolve any issues on their behalf. I believe that exposure at this level for a period of time provided her the opportunity to grow and learn while experiencing a different level of work. Genevieve did on many occasions go out of her way to assist the organization, only to find it would back fire causing her some grief however viewed it as a learning experience as opposed to personal. Her work with our department in Labrador has exposed her to many culturally sensitive issues, a variety of political issues, along with major opportunities economically of which [sic] she has always dealt with professionally and appropriately.
[13] The references had to be assessed by the assessment board as “unsatisfactory,” “poor,” “fair,” “good,” “very good” or “excellent.” The board used a grid to convert this score to a number within a range of 0-50 points for Personal Suitability and 0-80 points for Relationship Building. The scores were recorded on each Applicant’s scoring sheet. The reference checks were combined with responses from the Applicants’ oral interviews to achieve “an overall narrative rating” of the qualifications in question. The Applicants did not meet the minimum requirement for the qualifications in question and were screened out of the selection process. Had the Applicants’ references been scored higher in the “fair” range, or in the “good” range, they would have remained in the selection process.
[14] Between February 13, 2007 and March 5, 2007, each of the Applicants filed a complaint with the Tribunal under paragraph 77(1)(a) of the Act and submitted separate allegations. The complaints were consolidated on October 2, 2007. All three complaints alleged abuse of authority by the Respondents, the Deputy Head of Service Canada, in assessing their qualifications. Each candidate, including the Applicants, was assessed using an oral interview and a reference check.
[15] Ms. Hammond specifically indicated “that the selection board had both the authority and the responsibility to all candidates to ensure that any information sought and received from referees was both up to date and sufficient on which to base their assessment.” Mr. Westcott and Ms. Gibbons indicated that, “[t]he selection board abused its authority when it made the decision not to clarify or follow up with the referee who provided the reference check for the qualification sub-factor- “Abilities-Relationship Building” regarding elements deemed not addressed by the referee…”
DECISION UNDER REVIEW
[16] The Applicants’ allegation before the Tribunal was that the Respondents abused their authority under section 77 of the Act by acting on incomplete and inadequate information with respect to the reference checks conducted during the assessment process.
[17] The Tribunal determined that there were two issues to decide:
1) Whether there was an abuse of authority in assessing the candidates on inadequate information;
2) Whether there was an abuse of authority in declining to provide a reference for a candidate.
[18] The Tribunal found that the Applicants had not met the burden that rested upon them to provide compelling evidence of abuse of authority in the assessment of their qualifications. The Tribunal also found that the Applicants had failed to prove, on a balance of probabilities, that the Respondents had abused their authority when managers declined to provide a reference, because those individuals were not exercising any authority under the Act.
[19] The Tribunal found that there was: (1) no compelling evidence to support the contention that the assessment board did not have the requisite information to make an informed decision; (2) no compelling evidence to demonstrate that either the referees or the assessment board members were biased or had been provided with insufficient information or instruction; or (3) any other information to demonstrate a serious flaw in the process.
ISSUES
[20] The Applicants submit the following issues on this application:
1) What is the applicable standard of review?
2) Did the Tribunal commit an error of procedural fairness in expressly disregarding documentary evidence and in mistakenly declaring that a relevant document had not been entered into evidence before it?
3) Did the Tribunal err in law in failing to apply the proper test to determine whether the assessment board had abused its authority?
STATUTORY PROVISIONS
[21] The following provisions of the Act are applicable to these proceedings:
2(4) For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.
Appointment on basis of merit
30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.
Meaning of merit
(2) An appointment is made on the basis of merit when
(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and
(b) the Commission has regard to
(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and
(iii) any current or future needs of the organization that may be identified by the deputy head.
Assessment methods
36. In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).
Grounds of complaint
77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of
(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);
(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process; or
(c) the failure of the Commission to assess the complainant in the official language of his or her choice as required by subsection 37(1).
Area of recourse
(2) For the purposes of subsection (1), a person is in the area of recourse if the person is
(a) an unsuccessful candidate in the area of selection determined under section 34, in the case of an advertised internal appointment process; and
(b) any person in the area of selection determined under section 34, in the case of a non-advertised internal appointment process.
Excluded grounds
(3) The Tribunal may not consider an allegation that fraud occurred in an appointment process or that an appointment or proposed appointment was not free from political influence.
102. (1) Every decision of the Tribunal is final and may not be questioned or reviewed in any court.
2(4) Il est entendu que, pour l’application de la présente loi, on entend notamment par « abus de pouvoir » la mauvaise foi et le favoritisme personnel.
Principes
30. (1) Les nominations — internes ou externes — à la fonction publique faites par la Commission sont fondées sur le mérite et sont indépendantes de toute influence politique.
Définition du mérite
(2) Une nomination est fondée sur le mérite lorsque les conditions suivantes sont réunies :
a) selon la Commission, la personne à nommer possède les qualifications essentielles — notamment la compétence dans les langues officielles — établies par l’administrateur général pour le travail à accomplir;
b) la Commission prend en compte :
(i) toute qualification supplémentaire que l’administrateur général considère comme un atout pour le travail à accomplir ou pour l’administration, pour le présent ou l’avenir,
(ii) toute exigence opérationnelle actuelle ou future de l’administration précisée par l’administrateur général,
(iii) tout besoin actuel ou futur de l’administration précisé par l’administrateur général.
Méthode d’évaluation
36. La Commission peut avoir recours à toute méthode d’évaluation — notamment prise en compte des réalisations et du rendement antérieur, examens ou entrevues — qu’elle estime indiquée pour décider si une personne possède les qualifications visées à l’alinéa 30(2)a) et au sous-alinéa 30(2)b)(i).
Motifs des plaintes
77. (1) Lorsque la Commission a fait une proposition de nomination ou une nomination dans le cadre d’un processus de nomination interne, la personne qui est dans la zone de recours visée au paragraphe (2) peut, selon les modalités et dans le délai fixés par règlement du Tribunal, présenter à celui-ci une plainte selon laquelle elle n’a pas été nommée ou fait l’objet d’une proposition de nomination pour l’une ou l’autre des raisons suivantes :
a) abus de pouvoir de la part de la Commission ou de l’administrateur général dans l’exercice de leurs attributions respectives au titre du paragraphe 30(2);
b) abus de pouvoir de la part de la Commission du fait qu’elle a choisi un processus de nomination interne annoncé ou non annoncé, selon le cas;
c) omission de la part de la Commission d’évaluer le plaignant dans la langue officielle de son choix, en contravention du paragraphe 37(1).
Zone de recours
(2) Pour l’application du paragraphe (1), une personne est dans la zone de recours si :
a) dans le cas d’un processus de nomination interne annoncé, elle est un candidat non reçu et est dans la zone de sélection définie en vertu de l’article 34;
b) dans le cas d’un processus de nomination interne non annoncé, elle est dans la zone de sélection définie en vertu de l’article 34.
Exclusion
(3) Le Tribunal ne peut entendre les allégations portant qu’il y a eu fraude dans le processus de nomination ou que la nomination ou la proposition de nomination a résulté de l’exercice d’une influence politique.
102. (1) La décision du Tribunal est définitive et n’est pas susceptible d’examen ou de révision devant un autre tribunal.
STANDARD OF REVIEW
[22] The Applicants submit that the first issue in this application involves procedural fairness, which attracts no deference from a reviewing court and is subject to a standard of correctness. See: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056 at paragraph 46.
[23] The Applicants say that the second issue concerns the application of the proper test for abuse of authority. The determination of the proper test for abuse of authority is a question of law and a contextual analysis must be conducted to determine the appropriate standard of review. The analysis must consider the Tribunal’s privative clause, the Tribunal’s purpose and expertise and the nature of the legal question at issue. See: Dunsmuir v. New Brunswick 2008 SCC 9 at paragraph 64.
[24] The Applicants note that although the Tribunal’s Decision is protected by a privative clause that privative clause is not as strong as privative clauses set out in other federal legislation. While this clause dictates that some deference is owed to the Tribunal’s Decision, it is not subject to the highest degree of deference. See: Act at section 102, Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 27 (Dr. Q) and Dunsmuir at paragraph 52.
[25] The Applicants submit that the Tribunal was established to hear complaints of the kind brought forward by the Applicants. So the Tribunal has specific expertise in matters of federal public service staffing practices and procedures. The Tribunal does not, however, have expertise in questions of law. The majority of its members are not lawyers and the issue in this application is the proper test for abuse of authority, a legal issue which the Applicants allege goes beyond the Tribunal’s specific expertise. The Tribunal’s expertise in identifying the relevant considerations in applying the law is less than that of a reviewing court and, therefore, no deference is due. See: Dunsmuir at paragraph 50; Dr. Q at paragraphs 28-29 and Davies v. Canada (Attorney General), [2005] F.C.J. No. 188 at paragraphs 21-22.
[26] The Applicants also contend that the determination of the proper test for abuse of authority is a broad legal issue which has applications in all areas of administrative law. It is an issue “that is both of central importance to the legal system as a whole and outside the adjudicator’s area of expertise.” In such cases, the Applicants say that no deference is due to an administrative tribunal and a standard of correctness should apply. As a result of the Tribunal’s error of law, the Applicants submit that it considered irrelevant matters and failed to consider the relevant evidence before it. These errors flow from, and are subsumed by, the Tribunal’s failure to apply the proper test for abuse of authority, which taints its entire Decision. See: Dunsmuir at paragraphs 50, 54 and 59 and Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] S.C.J. No. 64 at paragraph 62.
[27] The Applicants take the position that, in this case, the Tribunal’s error can be articulated without reference to the facts before it; this was not an instance where “the legal and factual issues are intertwined and cannot be separated”: Dunsmuir at paragraph 53. However, the Applicants also say that while the two issues for consideration in this application are both subject to a standard of review of correctness, the Tribunal’s failure to recognize and consider documents entered into evidence before it, and its failure to apply the proper test for abuse of authority, are sufficiently egregious to render the Decision untenable based on any possible level of deference. Therefore, in the Applicants’ view, the Decision lacks the “justification, transparency and intelligibility” which are the hallmarks of a reasonable decision: Dunsmuir at paragraph 47.
[28] The Respondents submit that section 102 of the Act contains a clear and unequivocal privative clause in relation to all decisions of the Tribunal. This privative clause is a “full and true privative clause” which excludes review by any court and is an indicator that a high degree of judicial deference is owed to the Tribunal.
[29] The preamble to the new Act provides that staffing in the public service is to be based on merit and non-partisanship and that the delegation of staffing authority should afford public service managers the flexibility necessary to staff positions. The Respondents say that, in fulfilling this mandate, the Tribunal not only helps to foster fair and transparent employment practices, as well as constructive and harmonious labour-management relations, but also contributes to a public service that is based on merit and non-partisanship and which strives for excellence, and which is representative of Canada’s diversity.
[30] The Respondents note that the Tribunal is an expert statutory tribunal. Its members are Governor-in Council appointments as opposed to Public Service Commission employees. The Act requires them to have knowledge of, or expertise in, employment matters in the public sector. This is a clear recognition by Parliament of the expertise of the Tribunal’s members. An established, statutory tribunal benefiting from permanence, core staff members and a legal service unit should be awarded greater deference than an ad hoc decision-maker. See: Public Service Alliance of Canada v. Canada (Canadian Food Inspection Agency) 2005 FCA 366 at paragraph 21. The Tribunal has a relative expertise on staffing matters.
[31] The Respondents also submit that the Tribunal in this case was fixed with determining whether there was an abuse of authority in the assessment of qualifications and whether there was an abuse of authority by managers in declining to provide references. This required an appreciation of both legal and factual issues and did not amount to a question of law that is of “central importance to the legal system” or one that is “outside the specialized area of expertise of the administrative decision maker” as the Applicants suggest. The Respondents argue that the Tribunal has a greater amount of expertise in the interpretation of staffing issues than the Applicants allege, and this suggests that its Decision should attract a high level of deference.
[32] The Respondents submit that the Tribunal is entitled to a high degree of deference and, in light of Dunsmuir, the appropriate standard of review in this case should be reasonableness.
ARGUMENTS
The Applicants
Failure to Consider Relevant Evidence before the Tribunal
[33] The Applicants submit that the Tribunal’s record includes the Reference Check Instructions among the exhibits entered before the Tribunal; the record also refers to the same document in the table listing the exhibits entered before the Tribunal. The Tribunal was incorrect in its reasons when it said that this document was not entered into evidence and was not the basis of the allegations before it. This demonstrates that the Tribunal did not consider this document and accepted as uncontradicted the evidence of the assessment board that “there was no requirement to provide comments for each attribute or behaviour.”
[34] The Applicants note that the Reference Check Instructions document was key in establishing their case that the references upon which the assessment board relied in making its assessment as to merit were incomplete and inadequate. The Instructions were repeatedly referred to in the written arguments submitted by the Applicants. In conjunction with the scoring sheets, the Instructions provided clear evidence that the references relied on by the assessment board were incomplete and inadequate for the purpose of assessment of the qualifications in issue. By failing to acknowledge and consider evidence before it, or to properly review the arguments put forward by the Applicants with regard to the evidence cited in those arguments, the Tribunal erred in procedural fairness and violated the Applicants’ procedural rights. See: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1996] S.C.J. No. 116 at paragraph 41 and Nistor v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1805 at paragraph 37.
Failure to Apply the Proper Test for Abuse of Authority
[35] The Applicants note that the Act has established a new scheme for appointments according to merit in the federal public service. Under the Act, an appointment is made on the basis of merit when the Public Service Commission (or its delegate) appoints a person who “meets the essential qualifications for the work to be performed.” The Act has largely replaced the previous scheme of relative merit with one of individual merit. Assessment boards must, in an internal selection process, determine whether candidates possess the essential qualifications at issue. See: Act at section 30(2) and Tibbs v. Canada (Deputy Minister of National Defence) 2006 PSST 0008 (Tibbs) at paragraph 63.
[36] The Applicants submit that, under the Act, the Tribunal must consider complaints that a person was not appointed pursuant to an internal appointment process by reason of “an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2)”: Act at section 77(1)(a).
[37] The Applicants point out that the Tribunal, in accordance with the stated objectives of its enabling legislation, has adopted a broad definition of abuse of authority. Abuse of authority need not be intentional and the Act does not limit the definition of abuse of authority to the specific issues of bad faith, personal favouritism or discrimination pursuant to the Canadian Human Rights Act, R.S., 1985, c. H-6 referenced in the Act. The Applicants contend that the Tribunal has relied repeatedly on the analytical framework set out in David Phillip Jones and Anne S. de Villars, Principles of Administration Law, 4th Ed. (Toronto: Thomson Carswell, 2004) at pages 197 and 198. That framework identifies the following categories of abuse:
(a) Improper intention in exercising a discretionary power for an unauthorized or ulterior purpose, in bad faith, or for irrelevant considerations;
(b) Acting on inadequate material where there is no evidence, or ignoring relevant considerations;
(c) Exercising discretionary power so as to obtain an improper result, which may be unreasonable, discriminatory, or retroactive or uncertain in operation;
(d) Exercising discretionary power under a misapprehension of the law; and
(e) Fettering the exercising of discretion by adopting a policy or entering into a contract.
See: Tibbs at paragraphs 70 and 72 and Jolin v. Canada (Deputy Head of Service Canada) 2007 PSST 0011 at paragraph 70 (Jolin).
[38] The Applicants say that the Tribunal has paraphrased the second of the Jones and de Villars categories as follows: “When a delegate acts on inadequate material (including where there is no evidence or without considering relevant matters).” It is the second category of abuse of authority which was at issue in the instant case. These categories of abuse of authority are broad and apply in all areas of administrative law. An application may need to be modified, depending on the specific factual context in which the allegations arise.
[39] The Applicants take the position that any allegation that authority has been abused because a decision-maker has acted on inadequate material must involve a consideration of whether the material in question was inadequate. There must also be a determination as to whether the inadequate information was relied on. If the decision maker did rely on the inadequate information, then there must be a determination as to whether the reliance on the inadequate material was determinative of the outcome: Oakwood Development Ltd. v. St. François Xavier (Rural Municipality), [1985] S.C.J. No. 49 (Oakwood) at pages 7-8 and Tucci v. Canada (Revenue, Customs, Excise and Taxation), [1997] F.C.J. No. 159 (F.C.T.D.) (Tucci) at paragraphs 8 and 9.
[40] The Applicants say that the Tribunal determined none of the above in applying the test for abuse of authority and ignored the jurisprudence established by the Federal Court with regard to the adequacy of assessment tools in federal public service selection processes. Therefore, the Tribunal failed to understand the applicability of the Federal Court of Appeal’s decision in Madracki v. Canada, [1986] F.C.J. No. 727 (FCA) (Madracki).
[41] The Court in Madracki ruled that an assessment tool must test, or assess, the qualification at issue in order for an assessment of merit to occur. The Tribunal in this case focused narrowly on the fact that there was “no evidence to support a finding that the assessment tool, the reference check, was incapable of properly testing the qualification.” There was, however, no allegation before the Tribunal that a properly completed reference check, made in compliance with the instructions, was a flawed tool. There was evidence before the Tribunal which clearly indicated that the reference checks used by the assessment board in determining merit were incomplete and inadequate. They did not meet the requirement to test or assess the qualifications at issue as established by Madracki at page 4.
[42] The Tribunal stated that it did not apply the reasoning in Madracki because the current Act does not require a determination of relative merit. The Tribunal ignored the current Act, which requires appointments to be in accordance with merit as defined by the criteria established in the Act. One of the criteria is whether a candidate for an appointment meets the essential qualifications of the subject position. In failing to consider whether the reference check in this instance had properly assessed the qualification at issue, the Tribunal misapplied the test for adequacy of an assessment tool established in Madracki.
[43] The Applicants note that the first document which indicated that the references in the present case were inadequate for the purpose of assessing merit was the Reference Check Instructions. The Instructions asked for specific examples of each qualification; it is unclear whether a “qualification” is a broad category, such as “Personal Suitability- Working with Others,” or one of the listed elements of that category. However, it is clear from the scoring sheets that the assessment board, whatever its testimony to the Tribunal may have been, considered that there was a requirement that each element be addressed for a qualification to be adequately assessed. The Tribunal incorrectly stated that “no evidence was produced to suggest any misunderstanding of the reference instructions.”
[44] The scoring sheets provide evidence that the reference checks were inadequate. The references either did not address the qualifications at issue, or did not address sufficient elements of the qualification at issue. Despite finding that “[t]he written comments on the summary marking sheets were very brief, and, in each case, indicate that only some of the aspects of the qualification were addressed in the reference provided,” the Tribunal failed to consider relevant information when it said that “there is simply no evidence that the reference tool, the assessment check, was incapable of properly testing the qualification to be found wanting [sic] for each complainant.” The Applicants say that the fact that only some aspects of the qualifications were addressed by the reference checks rendered those checks incomplete and inadequate for the purpose of assessing the qualification.
[45] The Applicants point out that the Tribunal acknowledged that “the board referees could have gone back to the referees for more information, but, according to Mr. McCarthy, they felt they had enough.” This means that the Tribunal undertook no consideration of the adequacy of the reference checks to assess merit, while openly acknowledging that they were used to screen out the Applicants. Mr. McCarthy’s evidence before the Tribunal was accepted without considering or acknowledging contemporaneous written evidence which was directly contrary to it. While the Tribunal need not refer expressly to every document in evidence before it, it is not open to the Tribunal to ignore contradictory or conflicting evidence.
[46] The Applicants say that the assessment board did rely on incomplete or inadequate information and that the Tribunal merely noted that the assessment board gave the references similar scores to the ones given to the Applicants’ oral interviews. The Applicants submit that this was an irrelevant consideration because results from the oral interviews were in no way determinative of the outcome the references provided. It was not open to the Tribunal to base its conclusions on irrelevant facts. See: Vo v. Alberta (Workers’ Compensation Board, Appeals Commission), [2006] A.J. No. 1628 (Alta. Q.B.) at paragraphs 81, 86 and 88.
[47] The Applicants further submit that, although the qualifications at issue were also tested through oral interview questions, an adequate or complete reference check might, in all probability, have lead to a different assessment of the merit of each of the Applicants. The Applicants did not seek to substitute their own evaluations of their qualifications for those of either the referees or the assessment board.
[48] The Tribunal failed to consider the discrepancy between the assessment board’s “fair” assessment of the Applicants and the positive comments provided by the referees. There is no logical way, in the Applicants’ view, to reconcile the statements of the Tribunal. Each candidate was rated in the “fair” range, not only for the qualification but for the reference check itself. The assessment board did not accept the clearly positive character of the references provided. The Tribunal erred in failing to take this relevant consideration into account. See: Choudhry v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2181 (F.C.) at paragraphs 44 and 48.
[49] The Applicants also submit that, by disregarding the Reference Check Instructions, as well as the clearly positive nature of the references and the scoring sheets which stated that the incorrectly completed references were inadequate to assess the qualifications at issues, the Tribunal failed to consider evidence directly related to the issue before it. It was not open to the Tribunal to fail to resolve conflicting or contradictory evidence or ignore relevant matters. See: Bocangel v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1259 (F.C.) at paragraph 13 and Khemiri v. Canada (Solicitor General), [2005] F.C.J. No. 1028 at paragraph 22.
[50] The Applicants conclude that, in failing to turn its mind to the sufficiency of the reference checks before the assessment board for the purpose of assessing merit with regards to the qualifications at issue, as well as the extent to which this insufficient material was relied on by the assessment board and determined the outcome of the selection process, the Tribunal improperly applied the test for abuse of authority and erred in law: Oakwood at pages 7-8; Tucci at paragraphs 8 and 9 and Madracki at page 4.
The Respondent-Attorney General
[51] The Attorney General submits that the Applicants base their denial of procedural fairness on the fact that the Tribunal states that the instructions to referees were not provided during the hearing. The Tribunal’s record of documents, however, clearly indicates otherwise. The Attorney General contends that this argument is a red herring, since the Tribunal found that the Applicants did not meet their own burden of proof to demonstrate that the Respondents had abused their authority in assessing their qualifications. Whether or not the instructions to the referees were provided to the Tribunal does not change the fact that the Applicants did not meet their own burden.
[52] The Attorney General submits that the Applicants’ own answers were insufficient to demonstrate the essential qualifications at issue. So regardless of whether the referees gave higher rated responses than the candidates themselves, they were not sufficient to raise the Applicants to the level of having met the essential qualifications. The Attorney General also says that the Applicants’ contention that the assessment board had a responsibility to go back to the referees in order to obtain further information is unreasonable and does not fall within the general principles of abuse of authority under the Act. The assessment board said that the answers given by the referees were consistent with the responses given by the Applicants themselves during the oral interviews.
[53] In the Attorney General’s view, there was no failure of procedural fairness in the assessment board deciding that the oral interview and the referees were consistent. No further clarification was required.
Abuse of Authority
[54] The Attorney General submits that the threshold to find abuse of authority in assessment of essential qualifications is high. The burden on an applicant is to establish that a decision to appoint an appointee was made in bad faith, influenced by personal favouritism or otherwise affected by a similar consideration. The Attorney General notes that the term “abuse of authority” is not exhaustively defined in the Act, but subsection 2(4) of the Act provides that abuse of authority shall be construed as including bad faith and personal favouritism.
[55] The Attorney General says that the shared characteristics, or defining features, of specific items of “bad faith” and “personal favouritism” represent egregious or very serious degrees of misfeasance; both of which are extremely serious. The Attorney General cites this Court in Carpenter Fishing Corp. v. Canada, [1997] F.C.J. No. 1811 at paragraph 30 for the proposition that “allegations and findings of bad faith against a minister are…serious and damaging.”
[56] The Attorney General also says that the serious nature of such an allegation was recognized by the Tribunal, which noted that the complaints process should not be used merely to state a perceived injustice. An allegation of abuse of authority is a very serious matter and must not be made lightly. An employee must understand that a complaint is more than merely stating a perceived injustice: Portree v. Canada (Department of Human Resources and Social Development) 2006 PSST 0014 at paragraphs 47-50.
[57] Academic and judicial authority has found other specific terms that fit the limited class; these include “corruption” and “extreme lack of care,” as well as “personal hostility,” “political revenge” (although excluded under subsection 77(3)) and “dishonesty.” See: Lewis Klar, Tort Law (Calgary: Carswell, 1991) at page 198; Rayonier Canada (B.C.) Ltd. and International Woodworkers of America, Local 1-217 v. Ross Anderson