Kaczmar v. Canada ( Attorney General )
T-1551-98 / T-1557-98
Pelletier J.
30/7/99
17 pp.
Appeal pursuant to Public Service Employment Act, s. 21, against selection for appointment in closed competition-Applicant not meeting minimum score on standardized test, In-Basket Exercise 820, one of selection tools-Public Service Commission (PSC) refusing to provide access to test materials except upon terms unacceptable to applicant, on grounds disclosure would prejudice continued use of standardized test, would give applicant advantage in any subsequent writing of test-(1) Chairperson's order as to disclosure denying access to scoring manual, except to individual of appellant's choosing who has appropriate qualifications to review, evaluate test, scoring manual-Such person will not have to cross-examine witnesses with respect to test, application-Chairperson's order amounting to providing applicant with independent assessment of test, but limiting ability to make use of information in adversarial forum where rights will be determined-Based on reasoning in Barton v. Canada (Attorney General) (1993), 66 F.T.R. 54 (F.C.T.D.), wherein held error to deny applicants right to have representative, in charge of managing, conducting case, know same information known by potential witness, scoring manual ought to be disclosed to applicant's representative-Hasan v. Canada (Attorney General) (1996), 111 F.T.R. 217 (F.C.T.D.), wherein held scoring manual not subject to disclosure as not containing information pertaining to appellant or successful candidate, limited to circumstances therein-Primary issue therein whether Appeal Board could distinguish, for purposes of disclosure, between appellant, representative-Richard J. (as he then was) concluding no basis for such distinction so that if scoring manual subject to disclosure, would have to be given to appellant himself-Not changing nature of manual, but changing consequences of disclosure-No reason why scoring manual cannot be document subject to disclosure pursuant to Regulations, s. 24(1)-Test whether document containing information pertaining to appellant, successful candidate, and whether "liable to be disclosed before appeal board"-Presumably disclosure to psychologist intended to allay fears as to consistency of scoring-But having fears allayed not assisting in applicant's task in adversarial process to persuade Appeal Board-As scoring manual containing information pertaining to applicant and to successful candidate, in that recourse to scoring handbook necessary to make sense of test results, meets first part of test in s. 24(1)-"Liable to be disclosed before appeal board" unusual because not usually speaking of disclosure of documents before tribunal-Disclosure usually occurring at pre-hearing stage when parties exchange relevant documents for purpose of narrowing issues in litigation-Expression must be read in context of provision attempting to define which documents to be made available to appellant-Documents must contain information "pertaining" to candidates-Information not necessarily relevant-Second requirement that document must be liable to be disclosed before appeal board, importing requirement of relevance, since relevance determining whether document will be accepted as evidence before tribunal-Thus "liable to be disclosed before the appeal board" should be read as meaning "by reason of its relevance, capable of being introduced as evidence before the appeal board"-(2) Attorney General objecting to Chairperson's order allowing applicant's representative to take notes, photocopies of scoring manual, test material-S. 24(3), (4) permitting refusal to allow access or to provide copy of document for specified reasons-Attorney General arguing since Regulations, s. 24(5) only authorizing application for access, and s. 24(6) only speaking of order granting access, no jurisdiction for Chairperson to order copies be provided where deputy head or Commission invoking s. 24(3), (4)-Applicant submitting as matter of common sense, counsel cannot prepare adequately for examination, cross-examination of complex documents without having copies of documents to work with-In absence of authority compelling Court to do so, no obvious reason to depart from plain meaning of words used in Regulations-Requiring Court to respect distinction drawn between providing access to documents, copies of documents-If objection to disclosure taken pursuant to s. 24(3), (4), Appeal Board's authority under Regulations limited to ordering access to documents-Appeal Board not having authority to order copies be provided-To that extent Appeal Board erred in allowing unrestricted personal notes, photocopies to be taken of documents to which access granted-(3) Order excluding names of candidates appointed to positions as result of earlier closed competition or declining appointment, on ground none could be appointed to position subject of competition, and could not be considered to be successful appointment-Regulations, s. 24(1) defining subject of disclosure by reference to information pertaining to "appellant or to the successful candidate"-If disclosure intended to allow candidate to confirm merit principle applied, material time for disclosure when merit principle to be applied, i.e. time of creation of list-Applicant entitled to access to test results of all those candidates placed on eligibility list-Public Service Employment Act, R.S.C., 1985, c. P-33, s. 21 (as am. by S.C. 1992, c. 54, s. 16; 1996, c. 18, s. 15)-Public Service Employment Regulations, 1993, SOR/93-286, s. 24 (as am. by SOR/96-482, s. 4; 97-142, s. 8).