Digests

Canada (Attorney General) v. Girouard

T-2280-99

2001 FCT 83, McKeown J.

15/2/01

15 pp.

Judicial review of Public Service Commission Appeal Board's decision allowing respondent Girouard's appeal against selection of respondent Gilbert for appointment to position of Official Languages Coordinator with RCMP in Fredericton, New Brunswick--Selection process including administration of PSC Supervisor Simulation Exercise (428), work sample exercise simulating job of supervisor of client-service oriented work group--Candidate normally given two and one-half hours to study packet of 14 written test items (letters, memos, requests), prepare written summary, make fifteen-minute oral presentation to Selection Board--Time allotted important because PSC 428 simulating requirements of on-the-job situation, which involves performing under tight time lines--Before test administered, Girouard producing letter from psychologist expressing opinion timed test probably not resulting in valid measurement of Girouard's ability, performance; recommending test be either untimed or that she be given twice time normally allotted, as well as very quiet work environment--Girouard apparently having Attention Deficit Disorder--After considering nature of candidate's disability, job requirements, type of assessment method being used, Assessment Consultant with Personnel Psychology Centre of PSC recommending provision of 50% additional time for Girouard--RCMP revising time, but Girouard not passing test--Appeal Board relying on British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 to hold Girouard's prima facie case of discrimination not properly addressed by selection board because department not demonstrating PSC 428 bona fide occupational requirement in staffing position, resulting in merit principle not being observed--Application allowed--B.C. Public Service Commission human rights case, dealing with occupational standard--Present case involving appeal before board with limited jurisdiction to consider human rights questions--Also involving testing in job competition, not occupational standards required for job--Board not asking right questions--Exceeded jurisdiction in relying almost solely on human rights law to determine matter--Under Public Service Employment Act, s. 16 Commission to determine best candidate in accordance with merit principle (s. 10), but in determining merits of candidates, not to discriminate against any person by reason of disability (s. 12(3))--Board's role under s. 20 not to reassess candidates, but to conduct inquiry to determine whether selection made in manner consistent with merit principle: Blagdon v. Public Service Commission, [1976] 1 F.C. 615 (C.A.)--In MacNeill v. Canada (Attorney General), [1994] 3 F.C. 261 (C.A.), Robertson J.A. stating Appeal Board not having power to interpret, apply employment-related provisions of Canadian Human Rights Act (CHRA)--While Appeal Board not applying CHRA itself, did apply human rights principles--Problem that focussed strictly on human rights principles, ignored merit principle--Treasury Board Manual on Personnel Management stating "reasonable accommodation" referring to accommodating candidates for jobs (and employees) to point where such accommodation not imposing "undue hardship" on employer--Traditionally policy recognized through application by Appeal Board of assessment based on questions about whether testing so conducted that best candidate selected based on merit--Such questions including: was extra time allotted appropriate given nature of job; was extra time fair to other candidates; would Girouard's disability mean more time needed; was extra time appropriate given nature of test--Appeal Board not addressing these types of question by focussing analysis on BFOR test as applied in B.C. Public Service Commission case--RCMP attempted to reasonably accommodate Girouard by giving her extra time, quieter environment--Whether BFOR question for Human Rights Commission--B.C. Public Service Commission not applicable herein--In focussing almost solely on BFOR test in deciding case, Appeal Board shifting onus to applicant--Case went from being one in which respondent had to show applicant not conducting PSC 428 with merit principle in mind to one in which applicant had to prove ability to work under time constraints bona fide occupational requirement--Latter type of inquiry not properly before Board--Public Service Employment Act, R.S.C., 1985, c. P-33, ss. 10, 12 (as am. by S.C. 1999, c. 31, s. 182), 16, 21 (as am. by S.C. 1992, c. 54, s. 16).