Judgments

T-763-98

Gregory Murphy, Garnet Westhaver, John P. Keith, Gerard A. MacDonald, Brian H. Russell, Gerard Angus MacGillivray and Charles Blenkhorn (Applicants)

v.

Attorney General of Canada (Revenue Canada) (Respondent)

Indexed as: Murphyv. Canada (Attorney General) (T.D.)

Trial Division, McGillis J."Ottawa, November 30 and December 17, 1998.

Public Service — Appeals — Judicial review of Public Service Commission Appeal Board's refusal to disclose to applicants' representative scoring manual used to correct in-basket exercise completed by them in competition — Chairwoman holding bound by Hasan v. Canada (Attorney General), wherein held applicant not entitled to access to scoring manual — Chairwoman not bound by Hasan, decided under previous Public Service Employment Regulations — Failed to appreciate changes implemented in amended legislative scheme, including discretionary power accorded to appeal board to order access to any document in relation to which deputy head, Commission refusing access, subject to any conditions deemed necessary to make certain continued use of standardized test will not be compromised or that results not prejudiced — Erred by failing to consider under s. 24(5), (6) whether ought to order access to scoring manual subject to conditions, given deputy head's refusal to allow access.

This was an application for judicial review of the Public Service Commission Appeal Board's refusal to disclose to the applicants' representative the scoring manual used to correct a supervisory in-basket exercise completed by them as part of a closed competition held by the Department of National Revenue. The applicants were unsuccessful in the competition, and appealed against the selections for appointment on the basis that "the board of selection failed to consistently and properly assess qualifications and failed to use appropriate selection tools". At a disclosure meeting, Revenue Canada refused to disclose the scoring manual to the applicants' representative. The applicants filed a motion for disclosure. The Chairwoman of the Appeal Board refused to provide the applicants' representative with access to the scoring manual, holding that she was bound by Hasan v. Canada (Attorney General) , wherein Richard J. held, on April 12, 1996, that subsection 24(1) of the previous Regulations permitted either the applicant or his representative to have access to various documents concerning the standardized test, except the scoring manual used to mark the test because it was not within the class of documents for which disclosure rights are provided by subsection 24(1). The Public Service Employment Regulations, 1993, (the amended Regulations) were proclaimed in force on December 1, 1996. Subsection 24(1) provides that an appellant must be "provided access, on request, to any information, or document that contains information, that pertains to the appellant or to the successful candidate and that is liable to be disclosed before the appeal board". On December 3, 1996 the Federal Court of Appeal dismissed the appeal.

The issue was whether the Chairwoman of the Appeal Board erred in refusing to disclose to the applicants' representative the scoring manual.

Held, the application should be allowed.

The previous Regulations drew a clear distinction between access to documents, which was governed by subsection 24(1), and the provision of copies of documents, which was governed by subsections 24(2) and (3). An appellant's representative was entitled to have access to a document that fell within the terms of subsection 24(1), but could be denied the right to have a copy of that document. No provision of the previous Regulations provided the deputy head, the Commission or the appeal board with any other discretionary power in relation to access or disclosure.

In contrast, the amended Regulations qualify the subsection 24(1) disclosure provision by permitting the deputy head and the Commission to refuse to allow access where the disclosure might prejudice the continued use of a standardized test or affect the results of such a test by giving an unfair advantage to any individual. Furthermore, the amended Regulations accord a discretionary power to the appeal board to order access to any document in relation to which the deputy head or the Commission has refused access, subject to any conditions deemed necessary to make certain, among other things, that the continued use of the standardized test will not be compromised or that its results will not be prejudiced. The amended Regulations also make it clear that disclosure may only be granted in relation to documents or information that fall within the terms of subsection 24(1). There is no residual discretionary power under any other provision to enable the deputy head, the Commission or the appeal board to order disclosure of any other document or information. Finally, the amended Regulations introduce and define the concept of "full disclosure", and contain several provisions designed to ensure that the appellant receives full disclosure prior to the hearing. In particular, the Regulations vest the appeal board with the discretionary power to impose any measure that it considers necessary for the completion of full disclosure.

The amended legislative scheme was designed to balance the competing interests of the appellant in receiving full disclosure and of the government in protecting the confidentiality and integrity of the standardized tests. In order to achieve the appropriate balance, the amended Regulations provide for full disclosure to an appellant, recognizing that circumstances may exist in which disclosure should be refused or granted subject to conditions in order to protect the confidentiality and integrity of the standardized test. The amendments clearly contemplate that documents or information pertaining to a standardized test will be subject to disclosure; otherwise, there would be no necessity for the provisions granting discretionary powers to the deputy head, Commission and appeal board in relation to standardized tests. The scoring manual is one of the documents directly related to the administration and use of the standardized test and, as such may be information or a document "that pertains to the appellant or to the successful candidate, and that is liable to be disclosed before the appeal board", within the meaning of subsection 24(1). The question of whether a scoring manual ought to be disclosed to an appellant under subsection 24(1) depends on its relevance in the context of the facts of the case. However, even if the scoring manual is subject to disclosure on the facts of a particular case, the deputy head or the Commission and the appeal board may exercise their various discretionary powers under the amended Regulations.

The Chairwoman of the Appeal Board erred in determining that she was bound by Hasan v. Canada (Attorney General) which was decided in the context of the previous Regulations. In so concluding, she failed to appreciate the changes implemented in the amended legislative scheme, including the nature and extent of the discretionary powers accorded to the appeal board. In particular, the Chairwoman erred by failing to consider, under subsections 24(5) and (6) of the amended Regulations, whether she ought to order access to the scoring manual, subject to any conditions, given the refusal of the deputy head to allow access.

statutes and regulations judicially considered

International Convention on Civil Liability for Oil Pollution Damage, 1969, [1989] Can. T.S. No. 46.

International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, [1989] Can. T.S. No. 47.

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, ss. 20 (as am. by SOR/96-482, s. 2), 23 (as am. idem, s. 4), 24 (as am. idem), 25 (as am. idem).

cases judicially considered

distinguished:

Hasan v. Canada (Attorney General) (1996), 111 F.T.R. 217 (F.C.T.D.); affd Canada (Attorney General) v. Hasan (1996), 206 N.R. 175 (F.C.A.); Canada (Attorney General) v. Kam et al. (1996), 206 N.R. 173 (F.C.A.).

APPLICATION for judicial review of the Public Service Commission Appeal Board's refusal to disclose to the applicants' representative the scoring manual used to correct an in-basket exercise completed by them in a competition. Application allowed.

appearances:

Dougald E. Brown for applicants.

S. Ronald Stevenson for respondent.

solicitors of record:

Nelligan Power, Ottawa, for applicants.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

McGillis J.:

INTRODUCTION

The applicants have challenged by way of judicial review a decision, dated March 20, 1998, of the Chairwoman of the Public Service Commission Appeal Board (Chairwoman of the Appeal Board) on an interlocutory motion for the disclosure of information. In particular, the applicants have alleged that the Chairwoman of the Appeal Board erred by refusing to disclose to their representative the scoring manual used to correct an in-basket exercise completed by them in a competition.

FACTS

The applicants were candidates in a closed competition held by the Department of National Revenue (Revenue Canada) for positions of Team Leader, Audit, AU-04. As part of the competition, all candidates were required to complete Revenue Canada's Supervisory In-Basket Exercise (in-basket exercise), a standardized and professionally developed test created for Revenue Canada in 1992. The candidates' responses were marked by "scorers" on contract with Revenue Canada, who had been trained in marking the in-basket exercise by making use of a scoring manual.

The applicants were unsuccessful in the competition, and appealed to the Appeal Board against the selections for appointment, pursuant to section 21 of the Public Service Employment Act, R.S.C., 1985, c. P-33, as amended [by S.C. 1992, c. 54, s. 16; 1996, c. 18, s. 15] (Act), on the basis that "the board of selection failed to consistently and properly assess qualifications and failed to use appropriate selection tools."

On October 28, 1997, the applicants attended a disclosure meeting with an official of Revenue Canada. During the course of that meeting, Revenue Canada refused to disclose the scoring manual to the applicants' representative. The previous practice of Revenue Canada had been to disclose to an unsuccessful candidate's representative the in-basket exercise test materials and the scoring manual, under the terms of a confidentiality agreement. However, following the proclamation of the Regulations Amending the Public Service Employment Regulations, 1993 [SOR/93-286], SOR/96-482 (amended Regulations), Revenue Canada changed its practice by refusing to disclose the scoring manual.

In or about November 1997, the applicants filed with the Appeal Board a motion for disclosure, pursuant to subsection 24(5) of the amended Regulations [SOR/96-482, s. 4], seeking the disclosure of certain information and documents. Among other things, they requested the Appeal Board to provide their representative with access to the scoring manual used to mark their in-basket exercises.

In a decision dated March 20, 1998, the Chairwoman of the Appeal Board granted disclosure of certain information and documents to the applicants, on terms and conditions. However, she refused to provide the applicants' representative with access to the scoring manual. In her reasons, she stated as follows with respect to the question of disclosure of the scoring manual:

The [applicants'] representative sought access for himself alone to the scoring manual. In seeking to have such access denied, the department cited subsections 24(1) of the Regulations and its interpretation in Hasan v. Attorney General of Canada and Attorney General v. Kam et al. where the courts declined to find that the manual was a document that "contains information, that pertains to the appellant or to the successful candidate.[sic]" pursuant to subsection 24(1). The representative also cited subsection 24(3)(a) and (b) of the Regulations as a reason for not wanting such access. These subsections read:

24.(3) Despite subsections (1) and (2), the deputy head concerned may refuse to allow access to information or a document, or to provide a copy of any document, if the disclosure might . . . .

(c) affect the results of such a standardized test by giving an unfair advantage to any individual.

The [applicants] here are apparently not taking issue with the validity and reliability of the Supervisory In-Basket Exercise"a strategic decision that would normally occur only once in the history of a standardized test. Such a decision would make for an appeal hearing of an altogether different order of magnitude; and, as a practical matter, such allegations would invariably require full and complete disclosure to expert witnesses on both sides and a subsequent exchanges of analysis between such persons.

Any challenge to the validity and reliability of the [in-basket exercise] could not justify the subordination of the requirements of a fair hearing under section 21(1) of the Public Service Employment Act to a narrow interpretation of subsection 24(1) of the Regulations. The scoring manual would be relevant to the determination of these issues, and arrangements would have to be made for its disclosure under appropriate conditions. However, the only rationale given in aid of disclosure in this case has been a reference to "inconsistencies in marking" and "marking errors", and, in this circumstance, I am bound by the holding in Hasan, above. Accordingly, I will not require that the [applicants'] representative be granted access to the scoring manual.

No evidence was adduced by the respondent to establish that Revenue Canada's previous practice of disclosing the scoring manual created any problems in relation to the confidentiality or integrity of the in-basket exercise.

ISSUE

The question to be determined on this application for judicial review is whether the Chairwoman of the Appeal Board erred in refusing to disclose the scoring manual to the applicants' representative.

ANALYSIS

In order to determine the question raised in this application for judicial review, the legislative framework and the jurisprudence governing the disclosure of materials by the Appeal Board must be considered.

(i)  Previous Regulations

Prior to the amendments in 1996, section 24 of the Public Service Employment Regulations, 1993, SOR/93-286 (previous Regulations) provided for the disclosure of materials for use on an appeal in the following terms:

24. (1) An appellant or the appellant's representative shall be provided access, on request, to any document that contains information that pertains to the appellant or to the successful candidate and that may be disclosed before the appeal board.

(2) The appropriate deputy head may provide, on request, to the appellant or to the appellant's representative a copy of any document referred to in subsection (1).

(3) Where the appropriate deputy head refuses to provide a copy of a document, the appellant or the appellant's representative may request that the appeal board order that a copy of the document be provided to the appellant or the appellant's representative.

The extent of the disclosure to be provided, under subsection 24(1) of the previous Regulations, to an unsuccessful candidate in a closed competition was considered by Richard J. (as he then was) in Hasan v. Canada (Attorney General) (1996), 111 F.T.R. 217 (F.C.T.D.). In that case, the Appeal Board had made an interlocutory ruling refusing to permit the applicant to examine personally the documents pertaining to the standardized test, similar to the in-basket exercise, which had been used to assess his ability qualifications in the competition. The applicant was not represented before the Appeal Board, and had requested disclosure of all relevant materials to himself personally, including the scoring manual used by assessors to mark his test responses.

In his reasons at page 220, Richard J. outlined the practice followed by Revenue Canada, prior to the proclamation of the amended Regulations, for the disclosure of materials on an appeal to the Appeal Board under section 21 of the Act. He noted that there were two phases to the disclosure. In the first phase, the appellant was given all documents pertaining to his assessment, as well as a description by a departmental representative of the manner in which the standardized test was used in the selection process, without revealing "the `expected' or `correct' answers or behaviour." In the second phase, the appellant's representative was given full access to the standardized test materials, namely all documents pertaining to the appellant and the successful candidate, including the scoring manual used by the assessors to mark the test. The appellant was not authorized to consult the scoring manual, and his representative was not permitted to disclose any material which had not been disclosed to the appellant in the first phase of the disclosure process. The practice adopted by Revenue Canada was designed to ensure the confidentiality and integrity of the standardized testing system.

In determining whether the Appeal Board erred in refusing to permit the applicant to examine personally the standardized test materials, including the scoring manual, Richard J. considered the interpretation to be accorded to section 24 of the previous Regulations. In that regard, he stated as follows, at page 223:

In view of the mandatory and unambiguous language of that regulation, I must conclude that mandatory and full disclosure must be made of all documents that contain information that pertains to the appellant or to the successful candidate and that may be disclosed before the Appeal Board. This does not embody the right to make or receive a copy which is dealt with in subs. 24(2) and (3) of the Regulations.

There is no statutory justification for distinguishing between the disclosure to be made to the appellant and the appellant's representative. Although the objective of the Act is to ensure that selection is conducted according to the merit principle, this is not determinative of the precise procedure to be adopted in attaining this end. In enacting the above regulatory provision, the Public Service Commission has decided that full disclosure of documents that contain information pertaining to the appellant or to the successful candidate is the best method to preserve the merit principle.

I note, however, that on a careful reading of the regulation, disclosure need be made only of documents that pertain to the appellant or to the successful candidate. The manual for assessors, which is the Simulation's answer key, does not pertain to either of these persons. It is an internal document which is intended solely for the assistance of the Selection Board to preserve some consistency in evaluating candidates. Thus, I find that the manual for assessors is not within the class of documents for which disclosure rights are provided by s. 24(1).

Richard J. therefore concluded that subsection 24(1) of the previous Regulations permitted either the applicant or his representative to have access to various documents concerning the standardized test, save and except the scoring manual used to mark the test. Richard J. determined that the scoring manual was not subject to disclosure on the basis that it was "not within the class of documents for which disclosure rights are provided by s. 24(1)."

The decision in Hasan v. Canada (Attorney General), supra, was rendered by Richard J. on April 12, 1996.

On December 1, 1996, the amended Regulations were proclaimed in force.

On December 3, 1996, the Federal Court of Appeal rendered two decisions concerning the interpretation of subsection 24(1) of the previous Regulations. In Canada (Attorney General) v. Hasan (1996), 206 N.R. 175 (F.C.A.), Pratte J.A., writing for the Court, dismissed the appeal from the decision of Richard J., and held that subsection 24(1) of the previous Regulations required the disclosure of all relevant documents to an unrepresented appellant for the purposes of his appeal to the Appeal Board. In that regard, he stated as follows, at pages 176-177:

In our view, the judge of the first instance was right when he said that under the regulation there was no justification for distinguishing between the disclosure to be made to an appellant and to his representative. An unrepresented appellant and the representative of an appellant both have the same rights under s. 24(1).

In the second decision released on that date, Canada (Attorney General) v. Kam et al. (1996), 206 N.R. 173 (F.C.A.), Pratte J.A., writing for the Court, held, at page 174, that "[c]learly, an appellant who is represented should not be in a worse position" than an unrepresented appellant, who must be given access to all relevant documents for the purposes of the appeal. As such, he concluded that "a represented appellant is entitled to have access with his representative to the documentary evidence referred to in the regulation."

(ii)  Amended Regulations

As indicated earlier, the amended Regulations were proclaimed in force on December 1, 1996.

Section 2 of the amended Regulations amended section 20, a definition section which defines various terms used in the provisions governing an appeal to the appeal board, including "appeal document", "appellant" and "full disclosure". Those terms are defined as follows:

20. The following definitions apply in this section and sections 21 to 26.

"appeal document" means a document, addressed to the Commission, by means of which an appeal is brought under section 21 of the Act. (document d'appel )

"appellant" includes the appellant's representative. (appellant )

    . . .

"full disclosure" means access by the appellant to documents or information referred to in subsection 24(1), the obtaining by the appellant of a copy of any document referred to in subsection 24(2) and the submission of the allegations referred to in subsection 25(1) by the appellant to the deputy head concerned; (divulgation complète )

By virtue of section 4 of the amendments, sections 23 to 25 of the previous Regulations, which were in force at the time of the decision in Hasan v. Canada (Attorney General), supra, were replaced by new provisions governing the disclosure of documents or information for use at a hearing before the appeal board. For ease of reference, the full text of sections 23 to 25 is reproduced in Appendix A.

Under the amended legislative scheme, section 21 of the amended Regulations provides that an appeal to the appeal board under section 21 of the Act is instituted by the filing of an appeal document. Section 23 of the amended Regulations requires full disclosure of documents or information to be made to the appellant prior to giving notice of the date, time and place of the hearing. As defined in section 20, full disclosure consists of three elements: access by the appellant to documents or information referred to in subsection 24(1); the obtaining by the appellant of a copy of any document referred to in subsection 24(2); and, the submission by the appellant of his allegations to the deputy head under subsection 25(1). For the purposes of the present case, the latter element of the definition of "full disclosure", concerning the submission of the allegations by the appellant in subsection 25(1), has no application or relevance.

In the context of the legislative scheme, subsections 24(1) and (2) of the amended Regulations constitute the primary provisions governing disclosure to an appellant. Under the terms of subsection 24(1), an appellant must be "provided access, on request, to any information, or document that contains information, that pertains to the appellant or to the successful candidate and that is liable to be disclosed before the appeal board." By virtue of subsection 24(2), the deputy head of the department must provide, on request, a copy of any document disclosed under subsection 24(1). However, an appellant's right to disclosure under subsections 24(1) and (2) is qualified by subsections 24(3) and (4), which respectively permit the deputy head and the Commission to refuse to allow access to information or a document, or to provide a copy of any document, in certain circumstances. In particular, both the deputy head and the Commission may refuse access if the disclosure might prejudice the continued use of a standardized test or affect the results of such a test by giving an unfair advantage to any individual. In the event that the deputy head or the Commission exercises the discretionary power to refuse to allow access to information or a document, the appellant may request the appeal board, under subsection 24(5), to order that access. By virtue of subsection 24(6), the appeal board may order access to any information or document in relation to which the deputy head or the Commission has refused disclosure. In the event that the appeal board exercises its discretion to order that access, it may impose any conditions deemed necessary to make certain that, among other things, the continued use of a standardized test will not be compromised or that the results of such a test will not be prejudiced by giving an unfair advantage to any individual.

Section 25 of the amended Regulations contains various provisions governing the making of full disclosure prior to a hearing, and accords supervisory and discretionary powers to the appeal board to ensure that full disclosure is provided. Subsection 25(3) requires full disclosure to be completed within 45 days after the date of the Commission's letter acknowledging receipt of the appeal document. Subsections 25(6) and (7) permit the appeal board, in certain circumstances, to extend the 45-day disclosure period and to impose any measure necessary for the completion of full disclosure. A further discretionary power is accorded to the appeal board, under subsection 25(8), to permit the appeal board, on its own initiative, to "make an order imposing any measure it considers necessary for the completion of full disclosure and, if necessary, setting a new time limit for that completion." The appeal board may exercise that power in circumstances where full disclosure has not been completed within the prescribed 45-day period or any extended period, or where the appeal board believes on reasonable grounds that full disclosure cannot be completed within those periods.

A review of the legislative scheme enacted in the amended Regulations confirms that an appellant has a qualified right to have access to any information or documents containing information that pertains to him or to the successful appellant and that is liable to be disclosed before the appeal board. The appellant's right to access is expressly qualified by the discretionary power of the deputy head and the Commission to refuse access if the disclosure might, among other things, impact on the continued use or results of a standardized test. Furthermore, the appeal board may only order access in relation to the specific information or documents which either the deputy head or the Commission has refused to disclose. No provision in the amended Regulations creates any residual discretionary power to grant disclosure. In other words, to be subject to disclosure, information or documents must pertain to the appellant or to the successful candidate, and must be liable to be disclosed before the appeal board, within the meaning of subsection 24(1). Unless the information or document falls within the terms of subsection 24(1), it is not subject to disclosure. Indeed, that proposition is confirmed by section 20 which defines "full disclosure" as meaning, among other things, "access by the appellant to documents or information referred to in subsection 24(1), [and] the obtaining by the appellant of a copy of any document referred to in subsection 24(2)".

(iii)  Differences between the previous and the amended legislative schemes

A comparison of the previous and the amended Regulations confirms that the amended Regulations altered, in several significant respects, the legislative scheme governing the disclosure of documents for use at a hearing before the appeal board.

In both the previous and the amended Regulations, the wording in subsection 24(1) is substantially the same. However, under the previous Regulations, the disclosure to an appellant under subsection 24(1) was not qualified in any respect, as it is under the amended legislative scheme. By virtue of subsection 24(2) of the previous Regulations, the deputy head was permitted to provide, on request, a copy of a document in relation to which access had been granted under subsection 24(1). However, the deputy head had no discretionary power to refuse to provide the appellant or the appellant's representative with access to a document. Similarly, under subsection 24(3) of the previous Regulations, the appeal board was accorded the discretion only to provide the appellant or the appellant's representative with a copy of the document which the deputy head had refused to provide. The appeal board had no discretionary power enabling it to provide access to any document. In that sense, the previous Regulations drew a clear distinction between access to documents, which was governed by subsection 24(1), and the provision of copies of documents, which was governed by subsections 24(2) and (3). In other words, an appellant or an appellant's representative was entitled to have access to a document that fell within the terms of subsection 24(1), but could be denied the right to have a copy of that document. No provision of the previous Regulations provided the deputy head, the Commission or the appeal board with any other discretionary power in relation to access or disclosure.

In contrast, the amended Regulations qualify the subsection 24(1) disclosure provision by permitting the deputy head and the Commission to refuse to allow access in circumstances where the disclosure might, among other things, prejudice the continued use of a standardized test or affect the results of such a test by giving an unfair advantage to any individual. Furthermore, the amended Regulations accord a discretionary power to the appeal board to order access to any document or information in relation to which the deputy head or the Commission has refused access, subject to any conditions deemed necessary to make certain, among other things, that the continued use of the standardized test will not be compromised or that its results will not be prejudiced. The amended Regulations also make it abundantly clear that disclosure may only be granted in relation to documents or information that fall within the terms of subsection 24(1). In other words, there is no residual discretionary power under any other provision to enable the deputy head, the Commission or the appeal board to order disclosure of any other documents or information. Finally, the amended Regulations introduce and define the concept of "full disclosure", and contain several provisions designed to ensure that the appellant receives full disclosure prior to the hearing. In particular, the amended Regulations vest the appeal board with the discretionary power to impose any measure that it considers necessary for the completion of full disclosure.

(iv)  Is the scoring manual subject to disclosure under the amended Regulations

The amended Regulations were proclaimed in force following the decision of Richard J. in Hasan v. Canada (Attorney General), supra, and before the decision of the Court of Appeal in that case. Prior to the proclamation of the amended Regulations, Revenue Canada routinely disclosed to appellants' representatives, on a confidential basis, documents or information pertaining to the standardized in-basket exercise test, including the scoring manual. Presumably Revenue Canada disclosed that information or documentation on the basis that it was believed to be relevant to an issue raised on appeal, at least in some cases. No evidence was adduced by the respondent in these judicial review proceedings to establish that any harm was caused by the previous disclosure of information or documents concerning the standardized in-basket test, including the scoring manual.

Counsel for the respondent submitted, among other things, that the scoring manual was not subject to disclosure under the terms of subsection 24(1) of the amended Regulations on the basis of the jurisprudence decided in the context of the previous Regulations. I cannot accept that argument. In my opinion, the amended legislative scheme was designed in order to balance the competing interests of the appellant in receiving full disclosure and of the government in protecting the confidentiality and integrity of the standardized tests. In order to achieve the appropriate balance, the amended Regulations provide for full disclosure to an appellant, recognizing that circumstances nevertheless may exist in which disclosure should be refused or granted subject to conditions in order to protect the confidentiality and integrity of the standardized test. Indeed, the amendments clearly contemplate that documents or information pertaining to a standardized test will be subject to disclosure; otherwise, there would be no necessity for the provisions granting discretionary powers to the deputy head, Commission and appeal board in relation to standardized tests. The scoring manual is one of the documents directly related to the administration and use of the standardized test and, as such, may be information or a document "that pertains to the appellant or to the successful candidate and that is liable to be disclosed before the appeal board", within the meaning of subsection 24(1). The question of whether a scoring manual ought to be disclosed to an appellant under subsection 24(1) depends on its relevance in the context of the facts of the case. However, even if the scoring manual is subject to disclosure on the facts of a particular case, the deputy head or the Commission and the appeal board may exercise their various discretionary powers under the amended Regulations.

Conversely, if I were to conclude that the scoring manual does not, as a general rule, fall within the class of documents subject to disclosure within the meaning of subsection 24(1), its disclosure could not be compelled or ordered in any circumstances under any other legislative provision in the amended Regulations, given the absence of any residual discretionary power to grant disclosure. That simply could not have been the intent of Parliament in enacting the amended legislative scheme, particularly given the previous long-standing practice of Revenue Canada to disclose that document to an appellant's representative. Indeed, the Regulatory Impact Analysis Statement accompanying the amended Regulations confirms that one of the purposes of the amendments is to "limit the grounds on which a deputy head can refuse to release a document."¹

I have therefore concluded that the Chairwoman of the Appeal Board erred in determining that she was bound by the decision in Hasan v. Canada (Attorney General), supra, which was decided in the context of the previous Regulations. Indeed, in concluding that she was bound by Hasan v. Canada (Attorney General), supra, the Chairwoman of the Appeal Board failed to appreciate the changes implemented in the amended legislative scheme, including the nature and extent of the discretionary powers accorded to the appeal board. In particular, the Chairwoman of the Appeal Board erred by failing to consider, under subsections 24(5) and (6) of the amended Regulations, whether she ought to order access to the scoring manual, subject to any conditions, given the refusal of the deputy head to allow access.

DECISION

The application for judicial review is allowed with costs. The decision of the Chairwoman of the Appeal Board is quashed, and the matter is remitted to a differently constituted appeal board for rehearing and redetermination.

APPENDIX A

23. (1) Subject to subsection (3), the registrar of appeal boards shall give notice in writing, at least 14 days before the date of the appeal hearing, to the appellant, the deputy head concerned and the successful candidate, of the date, time and place of the hearing.

(2) The notice period referred to in subsection (1) does not begin until full disclosure is completed.

(3) Where the parties agree, the notice of an appeal hearing may be given less than 14 days before the date of the hearing.

. . .

24. (1) An appellant shall be provided access, on request, to any information, or document that contains information, that pertains to the appellant or to the successful candidate and that is liable to be disclosed before the appeal board.

(2) The deputy head concerned shall provide, on request, to the appellant a copy of any document referred to in subsection (1).

(3) Despite subsections (1) and (2), the deputy head concerned may refuse to allow access to information or a document, or to provide a copy of any document, if the disclosure might

(a) threaten national security of any person's safety;

(b) prejudice the continued use of a standardized test owned by the department or commercially available; or

(c) affect the results of such a standardized test by giving an unfair advantage to any individual.

(4) Despite subsections (1) and (2), the Commission or the Commission's representative may refuse to allow access to any information or document, or to provide a copy of any document, if its disclosure might

(a) prejudice the continued use of a standardized test owned by the Commission or commercially available; or

(b) affect the result of such a standardized test by giving an unfair advantage to any individual.

(5) Where the deputy head concerned or the Commission or its representative refuses to allow access to any information or document under subsection (3) or (4), the appellant may request that the appeal board order that access.

(6) Where the appeal board orders access to any information or document under subsection (5), that access is subject, before and during the hearing, to any conditions that the appeal board deems necessary in order to make certain that

(a) national security or any person's safety will not be threatened;

(b) the continued use of a standardized test referred to in subsection (3) or (4) will not be compromised; or

(c) the results of such a standardized test will not be prejudiced by giving an unfair advantage to any individual.

(7) Any information or document obtained under this section shall be used only for purposes of the appeal.

25. (1) The allegations submitted by the appellant to the deputy head concerned shall be in writing and sufficiently detailed to permit the deputy head to provide a response.

(2) Despite subsection (1), in exceptional circumstances and with the consent of the appeal board allegations may be submitted orally.

(3) Full disclosure shall be completed within the 45 days after the date of the letter acknowledging receipt of the appeal document.

(4) Despite subsection 23(2), after the full disclosure period referred to in subsection (3) has expired and whether or not full disclosure has been completed, the appeal may be scheduled to be heard in order that the appeal board may proceed to conduct the inquiry.

(5) Despite subsection (4), where full disclosure is completed and the completion confirmed in writing by the parties before the expiry of the period referred to in subsection (3), the appeal may be scheduled to be heard in order that the appeal board may proceed to conduct the inquiry.

(6) Despite subsections (3) and (4), where the appellant or the deputy head concerned believes on reasonable grounds that full disclosure cannot be completed within the period referred to in subsection (3), the appeal board may, on that person's request made within that period make an order

(a) if necessary, extending that period; or

(b) imposing any measure it considers necessary for the completion of full disclosure.

(7) Despite subsections (3) and (4), where the appellant or the deputy head concerned believes on reasonable grounds that full disclosure cannot be completed within the period extended under subsection (6), the appeal board may, on that person's request made within that period make an order

(a) if necessary, extending that period; or

(b) imposing any measure it considers necessary for the completion of full disclosure.

(8) Despite subsections (3) and (4), where

(a) full disclosure has not been completed within the period referred to in subsection (3) or a period extended under subsection (6) or (7), or

(b) the appeal board believes on reasonable grounds that full disclosure cannot be completed within the period referred to in subsection (3) or a period extended under subsection (6) or (7),

the appeal board may on its own initiative make an order imposing any measure it considers necessary for the completion of full disclosure and, if necessary, getting a new time limit that completion.

¹ SOR/96-482, Canada Gazette, Part II, Vol. 130, No. 23, p. 3081.