Three job applicants applied for judicial review of a decision of the Public Service Staffing Tribunal, which had dismissed complaints of abuse of authority in assessments of merit in an internationally advertised appointment process by Service Canada. The Court allowed the application, finding that the evidence suggested that the Assessment Board abused its authority by basing its assessment on inadequate information and the Tribunal entirely overlooked strong evidence on that point. The Tribunal thereby failed to afford the applicants procedural fairness.

Administrative law – Decisions of administrative tribunals – Public Service Staffing Tribunal – Employment law – Competition for employment – Judicial review – Procedural requirements and fairness – Evidence – Standard of review – Correctness – Abuse of public authority

Hammond v. Canada (Department of Human Resources and Social Development), [2009] F.C.J. No. 763, Federal Court, June 2, 2009, Russell J.

The Applicants were three employees at the Department of Human Resources and Social Development Canada. They had participated in a selection process for certain regional consultant positions within the Department, which required a reference. In providing a reference, the referees were asked to provide specific examples related to certain qualifications and to explain how the Applicants demonstrated certain abilities and skills in their work. None of the referees provided specific examples for each element and failed to provide examples with respect to certain elements, although they provided global comments which related to all elements.

The Applicants alleged that the Assessment Board required each element to be addressed in order for the reference to adequately assess merit and where a qualification was not commented on specifically, the Assessment Board considered the element unassessed and disregarded the positive global comments which praised the Applicants in respect to all, or several, of the elements associated with the qualification. The Assessment Board did not request the referees resubmit the references to seek clarification on any of the references.

The Applicants were screened out of the appointment process and lost the opportunity for a promotion. Had their references been scored higher, they would have remained in the selection process.

The Applicants each filed a complaint with the Public Service Staffing Tribunal, each with separate allegations. The complaints were consolidated as all three alleged abuse of authority by the Respondents in assessing their qualifications by acting on incomplete and inadequate information with respect to the reference checks conducted during the assessment process.

The Tribunal found that the Applicants had not met the burden to provide compelling evidence of abuse of authority in the assessment of their qualifications and failed to prove that the Respondents abused their authority when managers declined to provide a reference because those individuals were not exercising any authority under the Act. The Tribunal further found that there was no compelling evidence that the Assessment Board did not have the requisite information to make an informed decision that demonstrated the referees or Assessment Board were biased or were provided with insufficient information or instruction or that demonstrated a serious flaw in the process.

The Applicants applied for judicial review of the Tribunal’s decision. They argued that while the Tribunal member correctly framed the issue—“did the respondent abuse its authority by assessing the complainants based on inadequate information?”—it failed to address it and, in fact, disregarded material evidence and failed to apply the proper test for abuse of authority.

The Court found that the evidence suggested that the Assessment Board had abused its authority by basing its assessment on inadequate information and the Tribunal had entirely overlooked strong evidence on this point. In particular, the Tribunal had avoided examining the principal issue before it by pointing to the result as a reason to reject the complaints. There was a significant amount of compelling evidence before the Tribunal to suggest that the Board’s assessment of “enough information” was not correct.

The Court held that this raised a procedural fairness issue that must be assessed on a standard of correctness. However, even if the Court were to assess the matter on a standard of reasonableness, the error renders the decision unreasonable.

Finally, while not strictly necessary for its decision in light of the findings on the procedural fairness issue, the Court agreed with the Applicants that the Tribunal had committed a reviewable error in respect of the test it applied for abuse of authority.

In the result, the application was allowed and the Tribunal’s decision set aside. The matter was referred back for redetermination by a different Tribunal member in accordance with the Court’s reasons.

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