Digests

Gawlick v. Canada (Attorney General)

T-305-02

2004 FC 656, Russell J.

4/5/04

21 pp.

Judicial review of Public Service Commission Appeal Board's dismissal of applicant's appeal from decision of Selection Board made with respect to appointment to position of Intelligence Analyst in Department of Citizenship and Immigration--Four candidates not ranked in areas of knowledge, abilities, but assessed on pass/fail basis--All four passed, rated equally--No weight given to these factors in relative assessment--Personal suitability assessed on comparative basis--No numerical score assigned--Instead ranked based on descriptive assessments provided by referees supplemented by Selection Board member's personal knowledge of candidates--Appeal Board finding assessment of knowledge, abilities based on reference checks, personal knowledge reasonable given "relative importance of personal suitability to this position"--Statement of qualifications for postings, advertisement nowhere identifying such relative importance--Appeal Board clearly finding no relative or comparative assessment of candidates made by Selection Board under knowledge and abilities--Only assessment involving rating and ranking in category of personal suitability --Appeal Board noted factors of knowledge and abilities not ignored or eliminated and were considered in selection process, and each candidate had to pass in order to be placed on eligibility list--Nelson v. Canada (Attorney General) (2001), 204 F.T.R. 287 (F.C.T.D.), wherein Muldoon J. held "Each discrete qualification must be evaluated because each one is essential and independent of the others" clear authority for applicant's contention merit principle requiring evaluation of each discrete qualification--Appeal Board decision under review assumes "no way to determine the relative competence of candidates" in knowledge and abilities categories and although knowledge and abilities considered, sufficient to award candidates a pass--Guiding principle in each case must be: did Appeal Board satisfy itself that, on basis of qualifications established for position, manner of selection permitted assessment of relative merits of candidates?-- Appeal Board erred in concluding bare legal requirements met here even though relative competence under knowledge and abilities not assessed and sufficient that candidates awarded a pass in these categories--Appeal Board also erred in concluding procedure employed in assessment of personal suitability not violating merit principle--Candidates assessed on comparative basis in each of four designated elements of personal suitability: effective interpersonal relationships, motivation, judgment, and reliability--But two troubling aspects to methodology employed--First, two qualified candidates assessed by separate referees who had ample opportunity to observe people they were describing, but applicant assessed by Selection Board member alone who supervised him in 1995 and had worked with him for short time in more recent post--Second, Appeal Board decision excusing inadequacies of process used to assess personal suitability because "staffing values such as competency, non-partisanship, fairness and transparency must be balanced . . . against the management principles of flexibility and affordability/efficiency"--Need for cogent evidence and appropriate evidentiary framework cannot be compromised by "management values" when selection board called upon to make decision of this nature--Cogent evidentiary base showing candidates measured by same criteria in personal suitability category missing--Application allowed.