Digests

Canada (Attorney General) v. Gill

T-1790-99

2001 FCT 814, Rouleau J.

23/7/01

14 pp.

Application for judicial review of interlocutory decision of PSC Appeal Board Chairperson ordering disclosure of certain documents and materials associated with Team Coordinator Simulation Exercise 427, standardized test used by Revenue Canada to evaluate candidates in closed competition for Team Leader positions--Respondents unsuccessful in competition and launched appeal against selections, requesting certain materials associated with Simulation 427, including background information booklet; test booklet (exercise items); assessor manual; written responses of successful candidates--Revenue Canada agreed to provide written answers of some of selected candidates but refused to provide access to assessor manual--Appeal Board Chairperson ordered disclosure of assessor manual as well as test papers of all successful candidates subject to certain controlled conditions--Application allowed--Federal Court has consistently recognized importance of maintaining confidentiality of standardized tests on grounds disclosure of confidential test materials to public servants and others likely to take such tests could place them in position to acquire information concerning expected responses and to use that information in future competitions or disseminate it to others--Confidentiality of test materials therefore important aspect of merit principle--Public Service Employment Regulations, s. 24(4) providing Commission's representative may refuse to allow access to any information or document if disclosure might prejudice continued use of standardized test or affect results of such test by giving unfair advantage to any individual--In Kaczmar v. Canada (Revenue) (1999), 172 F.T.R. 197 (F.C.T.D.); and Jain v. Canada (Revenue) (1999), 173 F.T.R. 92 (F.C.T.D.), Court interpreted s. 24 and concluded it required Appeal Board Chairperson to decide 3 issues before ordering access to confidential materials associated with standardized test: pertinence and relevance of confidential material to which access sought; whether providing access to confidential materials might prejudice continued use of standardized test or give unfair advantage to any individual; if so, whether prejudice to future use of test can be avoided through imposition of conditions--Chairperson herein failed to determine whether disclosure of scoring manuals and test papers of successful candidates to respondents might prejudice continued use of Simulation 427 test or affect future test results by giving respondents or others unfair advantage--Little doubt that if respondents have access to scoring manuals associated with Simulation 427 test or test papers of all successful candidates, they will have unfair advantage over other candidates who have not seen manuals--Also risk information might be communicated to others--Possible tests would have to be discarded and replaced at significant costs--Chairperson also erred by imposing unreasonable burden and standard of proof on Revenue Canada and Commission, requiring that they support concerns of prejudice to tests and merit principle with "sufficient data"--Finally, Chairperson erred in concluding imposition of different levels of disclosure for appellants and their representatives could not be justified under amended Regulations--In order to protect integrity of standardized test and to ensure merit principle will be respected, Appeal Board Chairperson may, in appropriate case, order that appellant be given access to only portion of materials associated with such test--Chairperson may at same time order full disclosure of test materials to representative who will not derive benefit from such access--Decisions in Hasan v. Canada (Attorney General) (1996), 206 N.R. 175 (F.C.A.); and Canada (Attorney General) v. Kam (1996), 206 N.R. 173 (F.C.A.), which stand for proposition that both represented and unrepresented appellants entitled to have access to same materials as representatives, must be considered in light of amendments made to Regulations in 1996; in particular, they must be read in manner consistent with purpose contemplated by s. 24(6) (to provide access to confidential documents and information under conditions which would make certain that use of standardized tests would not be prejudiced)--Interests of respondents can be fully protected by disclosure of all pertinent confidential test materials to representative not employed in public service--Differential disclosure will ensure that future use of standardized tests, as well as merit principle itself, will not be compromised--At same time, permits interests of appellants be fully and fairly addressed--Public Service Employment Regulations, 1993, SOR/93-286, s. 24 (as am. by SOR/96-482, s. 4; 97-142, s. 8).