Digests

Boudreau v. Canada (Attorney General)

T-631-02

2003 FC 1413, O'Keefe J.

2/12/03

25 pp.

Judicial review of Second Public Service Commission Appeal Board's (Appeal Board) decision regarding contested competition process carried out under Public Service Employment Act (Act)--PSC implementing corrective measures as result of First Appeal Board's decision-- Applicants' position not changing--Second Appeal Board holding applicants could only be heard on grounds corrective measures not resulting in selection according to merit-- Whether Appeal Board exceeded jurisdiction in breaching rules of procedural fairness by refusing to allow introduction of evidence concerning references of applicants as candidates for positions in public service--Appeal Board did not allow applicants to introduce evidence that references for certain applicants for positions given by Chairperson of Selection Board--Applicants submitted one of members providing letters of recommen-dation for some candidates amounted to apprehension of bias by Selection Board--Applicants submitted Chairperson's refusal to receive this evidence breached duty of procedural fairness owed to applicants by Appeal Board--As result of Act, s. 21(4), appeal against appointment may only be made on ground corrective measures taken by Public Service Commission did not result in selection for appointment according to merit--As evidence sought to be introduced by applicants did not relate to corrective measures taken, Appeal Board did not err in failing to admit evidence--Whether Appeal Board erred in law by failing to find Selection Board biased because Chairperson of Selection Board, who participated in making selection of candidates and establishing pass marks, had provided references for some of candidates selected for eligibility list-- Applicant submitted Appeal Board still required to inquire whether there was bias--Issue central to Appeal Board under review and breach of procedural fairness for Appeal Board to refuse to consider allegation of bias made in respect of selection process--Applicants ground bias argument on two bases: (1) Rosemary Haney had participated in harassment complaint against member of executive committee consulted in setting pass marks; and (2) Chairperson of Selection Board provided reference letters for some of candidates and had sought to hide that fact--Firstly, issue of reference letters before Chairperson of first Appeal Board and he found "the use of the references and the weight assigned thereto in assessing the personal suitability qualification not unreasonable"--This finding, although not framed as bias argument not challenged by applicants--As to bias argument based on reference letters, matter also dealt with by Chairperson of first Appeal Board unfavourably to applicants --Not stated to be defect in first selection process by Chairperson of first Appeal Board and consequently, Chairperson of second Appeal Board, correct in finding Act, s. 21(4) only allows appeals "on ground that the measures so taken did not result in selection for appointment according to merit"--As to bias argument based consultation with member of executive committee, this issue arising from corrective measures taken by Commission in process of determining cut-off score--No bias by Selection Board on this point--Names of candidates not mentioned and discussions not appearing to have been binding--Whether Appeal Board erred in failing to exercise its authority to place applicant on eligibility list as directed by previous Appeal Board decision--Chairman of first Appeal Board did not direct Selection Board to place applicant on eligibility list--In his reasons, nowhere does Chairman of first Appeal Board direct either applicant be placed on eligibility list--Chairperson gave as reasons for not placing applicant on list fact Act, s. 17(1) allows Public Service Commission to appoint "from among the qualified candidates" indicates not all qualified candidates need to go on eligibility list--Up to Commission to place most highly qualified candidates on eligibility list--No reviewable error on this aspect--Applicants also argued Chairperson misapplied test found in Canada (Attorney General) v. Asselin (1986), 14 C.C.E.L. 268 (F.C.A.)--In case at bar, eligibility list irregular as all qualified candidates may not have been considered when Commission made up eligibility list-- Marceau J., in Asselin, stated Appeal Board cannot close its eyes to irregularities and ignore them--Once Appeal Board struck down overall pass mark of 65%, thus making applicant qualified for position, Appeal Board should have addressed Asselin--Applicant would be among group of qualified candidates from which Commission would obtain names for its eligibility list pursuant to Act, s. 17(1)--As result, eligibility list prepared without applicant's name being in pool of eligible candidates may not be complete list as discussed in Asselin--Appeal Board concluded its intention in these circumstances would be illegal or academic at best, such narrow interpretation of Asselin constitutes reviewable error-- In addition, Appeal Board placed great weight on expiry of eligibility list in reaching its conclusion that it could not intervene--Expiry of eligibility list cannot shield process from review where principle of selection by merit undermined-- Judicial review allowed--Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 17(1), 21(4) (as am. by S.C. 1992, c. 54, s. 16).