Canada (Attorney General) v. Allard

Canada (Attorney General) v. Allard
Court (s) Database
Federal Court Decisions
Date
2008-11-28
Neutral citation
2008 FC 1294
File numbers
T-1496-07
Decision Content
Date: 20081128
Docket: T-1496-07
Citation: 2008 FC 1294
[ENGLISH TRANSLATION]
Ottawa, Ontario, November 28, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
DENIS ALLARD,
CLAUDE BÉRARD,
DANIEL BOUCHER,
STÉPHANE GERVAIS,
MARIO LAVOIE
and
CHRISTIANE LEVASSEUR
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1] 55A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
(Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247.)
[2] 50At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision-maker is merely afforded a “margin of error” around what the court believes is the correct result.
51 There is a further reason that courts testing for unreasonableness must avoid asking the question of whether the decision is correct. Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others. Even if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable.
(Law Society of New Brunswick v. Ryan, above.)
[3] In Blagdon v. Canada (Public Service Commission, Appeals Board), [1976] 1 F.C. 615, [1976] F.C.J. No. 162 (QL), Arthur L. Thurlow J. wrote:
[6] On such an appeal – which, it should be noted, is not an appeal from the findings of a Selection Board but rather an appeal against the appointment or proposed appointment of a successful candidate – the essential question for the Appeal Board is whether the selection of the successful candidate has been made in accordance with the merit principle . An unsuccessful candidate, appealing against the appointment or proposed appointment of the successful candidate, is entitled to show, if he can, reasons for thinking that the merit principle has not been honoured [...]
[4] In accordance with Blagdon, above, Marshall Rothstein J., ruled in Scarizzi v. Marinaki (1994), 87 F.T.R. [1999] F.C.J. No. 1884 (QL):
[6] It is clear that one of the functions of the Appeal Board is to ensure, as far as possible, that Selection Boards adhere to the merit principle in selecting candidates for positions from within the Public Service in accordance with section 10 of the Act. However, it is not empowered to substitute its opinion with respect to a candidate’s assessment or examination for that of the Selection Board. Only if a Selection Board forms an opinion that no reasonable person could form, may an Appeal Board interfere with the decision of the Selection Board.
II. Judicial proceeding
[5] This is an application for judicial review of a decision by Line Chandonnet of the Appeal Board of the Investigations Branch of the Public Service Commission (the Commission), dated July 6, 2007, allowing appeals by the respondents under section 21 of the Public Service Employment Act, R.S.C. 1985, c. P-33 [repealed, 2003, c. 22, s. 2874] (PSEA) (The new PSEA came into effect on December 31, 2005).
III. Facts
[6] On November 10, 2004, Correctional Service Canada (CSC) posted a competition notice for 60 CX-03-level correctional supervisors, including 12 competition numbers – one for each institution in the Quebec Region.
[7] Under the heading “Qualifications and Screening Criteria” and the sub-heading “Experience”, the competition notice specifies that candidates must have the following experience: [translation] “Extensive experience in carrying out duties related to correctional operations, particularly inmate escorts and case management”.
[8] On the deadline for submitting an application, which was November 24, 2004, 191 candidates submitted their applications by stating on their applications for employment the number or numbers for the competitions for which they wanted to apply.
[9] Those applications were assessed as part of a process led by the Screening Board and the Selection Board, also known as the Screening Committee and the Selection Committee, and its members included Serge Trouillard, Manon Bisson, and André Courtemanche, who have several years of experience in CSC.
[10] On December 8, 2004, the Screening Board detailed the qualifications in the competition notice in the following manner:
[translation]
All candidates are expected to clearly and specifically show that they have the following experience:
Five (5) years of experience in performing duties related to correctional operations at CSC and/or a provincial/territorial correctional service and/or in a community residential facility. In addition, within the 5-year period, 2 years of experience in a CX-02 and/or PW and/or PO position. (Acting assignments, indefinite appointments, and internships will be considered.)
[11] Following that explanation of the qualifications, the Screening Board rejected 35 applications, of which 17 applications were rejected because the candidates did not fulfill the qualifications in the competition notice and 18 were rejected because the candidates clearly did not show that they had them. On December 23, 2004, the candidates who were not selected during that stage were notified that their applications were rejected.
[12] The 156 screened candidates were invited to take a Knowledge Examination. Of them, 25 had to pass the Diploma of Vocational Studies (DVS) equivalency test. There were three failures of the equivalency test and three withdrawals from the Knowledge Examination.
[13] The applicant sent a copy of the Statement of Merit Criteria and a list that showed the candidates the documents that acted as the basis for creating the Knowledge Examination. An amended list of those study documents was sent to the candidates on January 10, 2005.
[14] On February 17, 2005, the candidates received a letter of invitation to the Knowledge Examination, for which the date was set for March 14, 2005. Of the 150 candidates who were invited to the Knowledge Examination, 12 candidates were absent, 5 withdrew from the competition, and 58 failed.
[15] On April 27, 2005, the 74 candidates who passed the Knowledge Examination received a letter of invitation to the Abilities and Skills Assessment. The candidates were notified that four of the five capacities that were listed in the Statement of Merit Criteria, of which some were non-compensatory, would be assessed at this stage of the process Those were the following abilities: ability to communicate effectively in writing, managing staff in a productive and constructive manner, managing various complex situations, and managing various activities while considering financial resources.
[16] On June 1, 2005, CSC informed 30 candidates that they had failed this latest step of the process, from which one applicant withdrew. The following day, the applicant summoned the final 43 applicants to assess their ability to communicate effectively orally, and the following three personal qualifications: results orientation, teamwork, and sensitivity to diversity. As for the other personal suitabilities, they were assessed by taking references. All the candidates passed the assessment of the ability to communicate effectively orally. However, two candidates did not succeed regarding the personal suitabilities. Lastly, 41 candidates therefore qualified as part of that process.
[17] On July 15, 2005, the applicant informed all the candidates of the results of their competition by submitting compiled eligibility lists and the result that they had received for Abilities and Personal Suitabilities.
IV. Impugned decision
[18] After being informed of the results of the competition, the respondents appealed the appointments made or deeming done according to an eligibility list that was made following the competition. They appealed to the Appeal Board of the Investigations Branch of the Public Service Commission of Canada.
[19] The appellants, who are the respondents in this case, submitted 23 allegations. At the start of the appeal hearing, the allegations were grouped into four categories: screening, unfair advantage, assessment of abilities, and assessment of personal suitabilities. On July 6, 2007, the Appeal Board allowed the respondents’ appeal, but rejected three of the allegations.
[20] First, the Appeal Board recalled the extent of its powers of intervention in a decision made by a Selection Board, that is, an Appeal Board can only intervene in the event that the Selection Board has an opinion that no reasonable person would have.
Screening
[21] With respect to screening, the Appeal Board allowed the applicants’ four allegations. The first allegation was that the Screening Board erred by setting screening criteria that did not include the items that were mentioned in the competition notice and in the Statement of Merit Criteria, those being case management and escorting.
[22] The Appeal Board determined that at the time when it created the definition (December 8, 2004), the Board was acting as a Screening Board and not as a Selection Board. As a screening board, according to the applicant, the selection of the qualifications was done by CSC, who has the power to define them. However, the Appeal Board found that it nevertheless had jurisdiction to review the accuracy of the amendment to the terms of the competition notice and statement of merit criteria by the definition from December 8, 2004. The Appeal Board found that the Selection Board had clearly changed the qualifications that were stated on the competition notice, the effect of which was an expansion in the pool of potential candidates:
[translation]
[37] [...] We no longer find that definition or the concepts of case management or escorting. Moreover, in it, we find the concepts of the CX-02, PW and PO, which are not in any way found in the Competition Notice or the Statement of Merit Criteria. This not only caused the pool of candidates to expand, once the competition was closed, but it also changed the data. If the people holding CX-02, PW or PO positions had known that their classification, on its own, and the number of years that they had held those positions was enough for screening, that surely would have caused the pool of candidates to expand [...]
[23] The Appeal Board also found that the application of temporal criteria was done quantitatively and without any verification being done regarding whether the candidates had the required qualifications. Those were the duties that are generally done in the positions that had acted as the basis:
[translation]
[47] [...] Therefore, we can reasonably find that a PO’s experience is not only acquired before the 2-year period, but in addition, the Selection Board’s method of proceeding allowed for the rejection of candidates who were more deserving than those who were chosen. It was not reasonable for the Selection Board to proceed as it did.
[24] The Appeal Board also disposed of the second and third allegation for the same reasons: the Selection Board erred by granting inmate case management and escort experience to some candidates who did not deserve it.
[25] With respect to the application by Christiane Levasseur, the Appeal Board found that the Screening Board erred by rejecting her application at this stage. Ms. Levasseur indicated in her job application that she had worked for more than 16 years at the CX-01 and CX-02 levels, but failed to specify the duration of her employment as a CX-02. The Appeal Board determined that the Screening Board erred by adopting a rigid and mechanical approach when analyzing applications at that stage:
[translation]
[73] [...] the members of the Selection Board limited themselves to the assessment of the duration of time spent at a position according to specific groups and levels, rather than in terms of the depth of experience acquired, limiting the assessment of the ‘extensive experience’ criterion in a quantitative assessment.
Unfair advantage
[26] There were twelve allegations dealing with an unfair advantage. In summary, the allegations deal with the fact that some of the chosen candidates had extensive experience as acting correctional supervisors, the CX-03 position. In addition, the acting correctional supervisors had benefited from courses that dealt with the same subjects as those assessed during the Knowledge Examination and the Abilities and Skills Assessment. Due to the experience accumulated as acting correctional supervisors and the courses that had been offered to them, those candidates were granted an unfair advantage, preventing the selection from being done in compliance with the merit principle.
[27] The Appeal Board allowed all the allegations concerning unfair advantage because the selection tools had been designed to the advantage of one person who already held a management position in a correctional institution:
[translation]
[118] [...] Upon reading the problem, we can see that a person who has already worked at the position can more easily answer the questions than a person who is completely new to the position or who has no experience with management in a correctional environment. A person who has already held the position will be strongly favoured.
Assessment of abilities
[28] The Appeal Board allowed the claims, in which the Selection Board had not reasonably assessed the abilities of the candidates to communicate effectively orally. The Appeal Board even found that there was no evidence that showed the reason why the candidates were at the same level, having all received almost the same score:
[translation]
[156] The evidence also shows that all the candidates had received a score of 12, and therefore did not increase the passing grade or even receive a score of 16. There was no score between those two scores. However, the Department maintains that certain candidates were stronger than others within the group. Why were these differences not noted? I did not receive any reasonable explanation from the Department in that regard. The Selection Board was not able to show me that it had reasonably assessed each of the candidates according to a consistent standard [...]
Assessment of personal suitabilities
[29] The Appeal Board allowed the allegations in that the Selection Board had not reasonably assessed the candidates’ sensitivity to diversity, given that the question that was used to assess the criteria was aimed solely at the candidates’ ability to manage staff:
[translation]
[169] There was only a minuscule portion of the response that affected difference (Tell your employees that it is essential to be tolerant to people who have different ideas or approaches. Show that we can learn from everyone) and again, it does not mention having different approaches for cultural or religious reasons, but rather that the new employee comes from Headquarters and has no experience in operations, and limits itself to what others believe to be corporate, theoretical, and disconnected ideas. It did not in any way show me how a person who is able to integrate a new employee from Headquarters into his or her unit is sensitive to diversity as it was defined by the Selection Board.
V. Relevant provisions
[30] The principle that supports all appointments in the public service is that of merit, in compliance with subsection 10(1) of the PSEA:
(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.
(1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
[31] Section 12 of the PSEA enables the Commission to set selection standards according to which candidates will be assessed based on the requirements set by the Department, in this case, CSC:
12. (1) For the purpose of determining the basis for selection according to merit under section 10, the Commission may establish 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.
12. (1) Pour déterminer, conformément à l'article 10, les principes de la sélection au mérite, la Commission peut fixer des normes de sélection et d'évaluation touchant à l'instruction, aux connaissances, à l'expérience, à la langue, au lieu de résidence ou tout autre titre ou qualité nécessaire ou souhaitable à son avis du fait de la nature des fonctions à exécuter et des besoins, actuels et futurs, de la fonction publique.
[32] The Commission can review the candidate qualifications required by the Department under section 12.1 of the Act:
12.1 The Commission may review any qualifications established by a deputy head for appointment to any position or class of positions to ensure that the qualifications afford a basis for selection according to merit.
12.1 La Commission peut réviser les qualifications établies par un administrateur général pour les nominations à tel poste ou telle catégorie de postes afin de faire en sorte que ces qualifications satisfassent au principe de la sélection au mérite.
[33] Section 21 of the PSEA provides a mechanism that allowed for unsuccessful candidates to appeal to the Appeal Board established by the Commission:
(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 the period provided for by the regulations of the Commission, 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.
(1) Dans le cas d'une nomination, effective ou imminente, consécutive à un concours interne, tout candidat non reçu peut, dans le délai fixé par règlement de la Commission, en appeler de la nomination devant un comité chargé par elle de faire une enquête, au cours de laquelle l'appelant et l'administrateur général en cause, ou leurs représentants, ont l'occasion de se faire entendre.
VI. Issues
[34] First, in order to answer the last six basic questions, we need to understand the preliminary context in which the first two are found:
What are the standards of review that apply to the Appeal Board’s decision?
What is the Appeal Board’s power for intervention when dealing with an appeal under section 21 of the PSEA?
(1) Did the Appeal Board reverse the burden of proof as part of an appeal made under section 21 of the PSEA?
(2) Did the Appeal Board err by determining that the screening of candidates was not done on the merit principle?
(3) Did the Appeal Board err by determining that some candidates received an unfair advantage?
(4) Did the Appeal Board err by deciding that the Selection Board did not assess the candidates reasonably regarding their ability to communicate effectively orally?
(5) Did the Appeal Board err by determining that the Selection Board did not assess sensitivity to diversity?
(6) Did the poor quality of the recordings of hearings before the Appeal Board constitute a breach of the principles of natural justice?
VII. Analysis
A. What are the standards of review that apply to the Appeal Board’s decision?
[35] The decision Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, stated that the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.
[36] In this case, jurisprudence has established the standard of review regarding the category of questions corresponding to the selection process in the public service. In proceeding with the analysis, the Federal Court of Appeal found in Davies v. Canada (Attorney General), 2005 FCA 41, 330 N.R. 283 at paragraph 23, that the appropriate standard of review of the Appeal Board's decision on questions relating to the selection process is reasonableness. That standard of review was specified in a few recent decisions, in which the Federal Court of Appeal applied reasonableness to mixed questions of fact and of law, like knowing whether the Appeal Board’s findings were based on evidence (McGregor v. Canada (Attorney General), 2007 FCA 197, 366 N.R. 206 at para 14; Canada (Attorney General) v. Clegg, 2008 FCA 189, 168 A.C.W.S. (3d) 109 at para 18).
[37] The questions in law are as follows: knowing with whom the burden rests as part of a proceeding, the jurisdiction of an Appeal Board, the questions of procedural fairness and natural justice, and the choice and application of the appropriate standard by the administrative tribunal. The Federal Court of Appeal found that the questions that are exclusively of law must be reviewed according to correctness (Clegg, McGregor, and Davies, above).
B. What is the Appeal Board’s power of intervention when dealing with an appeal under section 21 of the PSEA?
[38] An appeal board performs a different duty than that of a selection board. Its duty is not to assess new candidates, but to conduct an investigation to determine whether the selection was done in compliance with the merit principle:
[3] [...] The function of the Appeal Board is to hold 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 even if it is of the opinion that, had it been responsible for the task entrusted to the Selection Board, the result might have been different If a Selection Board has performed its duty in accordance with the Act and regulations and has made an honest effort to choose the most deserving candidate, then an Appeal Board would be exceeding its authority if it allowed the appeal from the decision of the Selection Board on the grounds that the latter had not availed itself of the means considered by the Appeal Board to be most appropriate for the performance of its duty.
(Ratelle v. Canada (Public Service Commission, Appeals Branch), [1975] F.C.J. No. 910 (QL), 12 N.R. 85 (F.C.A.)
[39] In Blagdon, above, Thurlow J. wrote:
[6] On such an appeal -- which, it should be noted, is not an appeal from the findings of a Selection Board but rather an appeal against the appointment or proposed appointment of a successful candidate -- the essential question for the Appeal Board is whether the selection of the successful candidate has been made in accordance with the merit principle. An unsuccessful candidate, appealing against the appointment or proposed appointment of the successful candidate, is entitled to show, if he can, reasons for thinking that the merit principle has not been honoured, and in that context the applicant, on his appeal, was entitled to show, if he could, that the Selection Board’s opinion that he did not have a good safety record was without foundation.
[40] In accordance with Blagdon, above, Rothstein J. ruled in Scarizzi v. Marinaki, above:
[6] It is clear that one of the functions of the Appeal Board is to ensure, as far as possible, that Selection Boards adhere to the merit principle in selecting candidates for positions from within the Public Service in accordance with section 10 of the Act. However, it is not empowered to substitute its opinion with respect to a candidate's assessment or examination for that of the Selection Board. Only if a Selection Board forms an opinion that no reasonable person could form, may an Appeal Board interfere with the decision of the Selection Board.
An appeal board is not entitled to substitute a selection board’s reasoning with that of its own if that reasoning is not unfounded. Rothstein J. applied that principle to the facts before him: “In my respectful opinion, the Appeal Board, in this case, substituted its opinion as to the appropriateness of the applicant’s answer for that of the Selection Board and, in so doing, erred in law.” (Scarizzi, above, at para 8).
[41] In determining that the standard of review regarding an Appeal Board decision on questions relating to a selection process would be reasonableness and not correctness, an Appeal Board decision that substitutes a Selection Board’s opinion with that of its own by applying correctness has made an error in law.
[42] An appeal board should only be concerned with the actions of the Commission in selecting from among the candidates who have the qualifications required by the employer-department (Canada (Attorney General) v. Perera (2000), 189 D.L.R. (4th) 519, 256 N.R. 57 at para 20, leave for appeal to S.C.C. refused, [2000] S.C.C.A. No. 434). When an Appeal Board determines the qualifications for candidates, it oversteps its jurisdiction, thus making an error in law that is reviewable by this Court based on correctness.
(1) Did the Appeal Board reverse the burden of proof as part of an appeal made under section 21 of the PSEA?
[43] Both parties agree that before the Appeal Board, the burden of proof rests with both the respondents, who were then the appellants. It is up to them to demonstrate the merits of their allegations in which the merit principle was tainted by the selection process (Blagdon, above, at para 6; McGregor, above, at para 17; Girouard v. Canada (Attorney General), 2002 FCA 224, [2002] F.C.J. No. 816 (QL) at para 12). To discharge that burden, the appellants should show that there is a real possibility or likelihood that the best persons possible were not appointed:
[15] In order to succeed under section 21 in establishing that the merit principle had been offended, the applicants had to convince the Appeal Board that the method of selection chosen was “such that there could be some doubt as to its fitness to determine the merit of candidates” i.e. as to its fitness to determine whether “the best persons possible” were found. An appeal board’s main duty being to satisfy itself that the best persons possible were appointed, it goes without saying that an appellant, before even embarking on a challenge to the method of selection chosen, should at least allege (and eventually demonstrate) that there was a real possibility or likelihood that the best persons possible were not appointed.
(Leckie v. Canada, [1993] 2 F.C. 473, [1993] F.C.J. No. 320 (QL); also McGregor, above at para 20.)
[44] However, the applicant claims that the Appeal Board transferred the [translation] “the burden from its shoulders” to the Selection Board (Applicant’s Factum at para 56). Because of that, the allegation of reversing the burden of proof, which is an error in law, applies to determining screening questions, unfair advantages, and assessment of abilities.
[45] The question of knowing on whom the burden of proof rests as part of an appeal under section 21 of the PSEA, being a question of law, will be reviewable by this Court in accordance with correctness.
[46] On several occasions, the Appeal Board expressed in its decision that it was satisfied by the evidence: [translation] “the evidence submitted by the appellants’ representative shows that... ” (Decision at para 51), “The evidence showed that... ” (Decision at paras 38, 68) or “The evidence shows... ” (Decision at paras 56, 81, 86, 106, 119, 156). The Appeal Board gave a detailed summary of the facts alleged by the appellants and the Department’s response and reviewed the assessment methods that were applied by the Selection Board by reasoning its decision for each of the allegations. Even if it was not explicit, the appellants satisfied the Appeal Board that the assessment of the candidates by the Selection Board had violated the merit principle.
[47] As specified in McGregor, above, J. Edgar Sexton J. wrote:
[27] [27] For a section 21 appeal to be feasible, the appellant must direct his evidence to the particular elements of the selection process which he believes involved a departure from the merit principle. As the strength of the appellant’s case grows, the hiring department will develop what may be referred to as a “tactical burden” to adduce evidence to refute the evidence on which the appellant relies, for fear of an adverse ruling. However, this tactical burden does not arise as a matter of law, but as a matter of common sense. Throughout, the legal and evidential burden of convincing the Appeal Board that the selection board failed to respect the merit principle rests with the appellant.
[48] The Appeal Board did not reverse the burden of proof and the appellants discharged their burden by proving “that there was a real possibility or likelihood that the best persons possible were not appointed” (Leckie, above at para 15).
(2) Did the Appeal Board err by determining that the screening of candidates was not done on the merit principle?
[49] The applicant claims that the Appeal Board erred by intervening in the creation of the qualifications done by the Screening Board, which, as an instrument created by the Department, has the sole authority for defining the qualifications for a position in the public service (Applicant’s Factum at paras 19-20, 26). In addition, the additional qualifications created by the Screening Board were reasonable and associated with the merit principle. According to the applicant, the Appeal Board erred in law by substituting the Screening Board’s opinion with that of its own instead of applying reasonableness.
[50] Although the Appeal Board determined that the Board acted as a Screening Board and not as a Selection Board during the creation of the definitions for the qualifications, the Appeal Board then ruled that the added qualifications were not reasonable and were contrary to the merit principle.
[51] Screening and Selection Boards are “bureaucratic creations” (Krawitz v. Canada (Attorney General) (1994), 86 F.T.R. 47, 97 A.C.W.S. (3d) 2 at para 19). The PSEA does not mention the creation of either of those types of boards, while the Public Service Employment Regulations (2000) SOR/2000-80 (the Regulations) only mentions “selection boards”. Screening Boards are not mentioned in either the PSEA or the Regulations. Screening Boards are instruments created by the Department for the purposes of preparing the Selection Board for its deliberations. Screening boards apply the qualifications required by the Department and can reject the candidates who do not meet them.
[52] However, selection boards are instruments used by the Commission to ensure that the merit principle is respected, with consideration for the required qualifications established by the Department:
[33] As observed by Jackett C.J. in Bauer v. Canada (Public Service Commission Appeal Board), [1973] F.C. 626 (C.A.), every department in the Canadian government is created by an enabling statute. [1973] C.F. 626 The statute defines the functions to be performed by the department and places a Minister of the Crown at its head. The Minister is vested with the management and direction of the department. Absent any statutory limitation, the Minister has the authority to determine the number and kinds of employees to have in the department as well the authority to select which persons to employ.
[...]
[37] Section 12 empowers the Commission to establish selection standards by which candidates will be assessed as to how well they meet the qualifications determined by the department for that particular position [...]
(Davies, above).
The Department, as an employer, is the best judge of its needs; therefore, the definition of a position and the establishment of the qualifications for that position are the sole responsibility of the Department (Canada (Attorney General) v. Mercer, 2004 FCA 301, 244 D.L.R. (4th) 382 at para 16). As a result, an appeal board has no say with respect to the qualifications which the Department considers necessary or desirable, since these are a function of management falling within the authority of a minister to manage his or her department under its enabling statute (Perera, above at para 20). An appeal board is only concerned with the actions of the Commission in selecting “on merits” from among the candidates who have the qualifications required by the Department.
[53] In this case, the members of the Screening Board and Selection Board are the same. The Appeal Board acknowledged a distinction between the two boards, despite their similar compositions:
[31] [translation]
[...] In fact, for purely technical reasons, since the Board has not yet started to assess applications, at the time when the definition was created, the Board was acting as a Screening Board and not as a Selection Board.
[54] The applicant claims that a Screening Board’s inherent powers enable it to redefine the requirements set by the Department in the statement of merit criteria (Applicant’s Factum at para 27).
[55] The subtlest jurisprudence allows for a Screening Board to set out the qualifications required by the Department in a reasonable manner, provided that the addition does not contravene the merit principle. In Bambrough v. Canada (Public Service Commission Appeal Board), [1976] 2 F.C. 109, 12 N.R. 553 (F.C.A.), Gerald Le Dain J. explained that in certain situations, a Screening Board can further specify the qualifications:
[12] [...] But even if it is necessary to treat the formulation of these additional qualifications as the act of the Commission, I do not think it is beyond the implied powers of the Commission to participate to this extent in the elaboration of the qualifications for a position, particularly where, as here, it is done not only with the approval, but the active participation of an officer of the department concerned. There is no issue here of the Commission attempting to usurp or override the departmental authority to establish the qualifications for a position.
[13] The statutory duty of the Commission to appoint qualified persons on the basis of merit to positions within the Public Service must carry with it at least the implied power to participate with the department or other branch of the Public Service concerned in establishing the qualifications for a position. The Commission must have the power to assure that the specified qualifications are those that are called for by the position and that the statement of such qualifications affords a sound basis for a process of selection according to merit...
[56] In Canada (Attorney General) v. Blashford [1991] 2 F.C. 44, 120 N.R. 223 (F.C.A.), Louis Marceau J.A. found that neither the Commission nor the Screening Board is enabled to intervene, either by partial addition or amendment, in the establishment of the essential requirements as defined by the affected Department. Marceau J.A. explained Bambrough and stated three points:
[6] It is true that in Bambrough v. Public Service Commission, [1976] 2 F.C. 109 (C.A.), and again more recently in Re Boychuck and Appeal Board Established by the Public Service Commission et al. (1982), 135 D.L.R. (3d) 385 (F.C.A.), 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 Le Dain J. in the Bambrough case (page 117 of the report), "the statement of such 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.
As for the case before him, Marceau J.A. found that the Screening Board, on its own behalf and without the Department’s participation, had decided to specify the Department’s qualifications. Without the Department’s participation, the Screening Board was thus found to have overstepped its authority.
[57] In Blashford, Robert Décary J.A. concurred and elaborated on those points:
[25] 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. [...]
[26] [...] 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.
[...]
[29] [...] There is no evidence, here, that the