A-298-80
The Queen (Applicant)
v.
H. Khan, D. F. Marchand, S. S. Martucci, F. Ott,
L. Purvey and I. J. Williams (Respondents)
Court of Appeal, Ryan and Le Dain JJ., MacKay
D.J.—Toronto, December 8 and 11, 1980.
Judicial review — Public Service — Respondents eliminated
from closed competition in view of their results in the General
Administrative Ability Test — Application to review and set
aside decision of Appeal Board that the majority of questions
in the test were not relevant to the abilities required for the
position — Whether Appeal Board erred in law — Public
Service Employment Act, R.S.C. 1970, c. P-32, ss. 10, 21 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside the
decision of an Appeal Board allowing the appeals of the
respondents who were eliminated from a closed competition
because of their results in the General Administrative Ability
Test. The Board held that the majority of the questions in the
test were not relevant to the two ability sub-factors it was
supposed to assess, having regard to the duties of the position
under competition. The question is whether the Board erred in
law in so deciding.
Held, the application is dismissed. Whether a particular
selection process is in fact designed or calculated to establish
the merit of candidates in relation to the qualifications for a
position is subject to review by an appeal board pursuant to
section 21 of the Public Service Employment Act. An appeal
board may allow an appeal on the ground that the selection
process or a substantial or decisive part of it was not suitable
for assessing merit in relation to certain of the qualifications for
the position. The question whether a particular part of the
selection process is a true test of merit is one of fact. It is not
for this Court to substitute its opinion for that of the Appeal
Board.
APPLICATION for judicial review.
COUNSEL:
W. L. Nisbet, Q.C. for applicant.
M. W. Wright, Q.C. for H. Khan.
No one appearing for other respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for H. Khan.
The following are the reasons for judgment
delivered orally in English by
LE DAIN J.: This is a section 28 application to
review and set aside the decision of an Appeal
Board under section 21 of the Public Service
Employment Act, R.S.C. 1970, c. P-32. The Board
allowed the appeals of the respondents, who were
unsuccessful candidates in a closed competition to
select persons for appointment to the position of
shift supervisor in mail processing facilities of the
Post Office in the Metro Toronto region, on the
ground that they were eliminated from the compe
tition on the basis of the results in a test that was
not relevant to the abilities that it was supposed to
assess. The Crown brings the section 28 applica
tion on the ground that in so deciding the Appeal
Board erred in law.
The notice of the competition described the
duties of the position of shift supervisor. A state
ment of qualifications set forth certain "basic
requirements", the nature of which do not concern
us here, and certain "rated requirements", which
included a knowledge requirement, an ability
requirement, and a personal suitability require
ment. The ability requirement, which is the one in
issue, reads as follows:
Ability
1. Ability to supervise in terms of assigning work, training and
developing employees, counselling, appraising work perform
ance and recommending disciplinary action.
2. Ability to anticipate, plan and organize work, set priorities
and allocate staff.
3. Ability to analyze problem situations within the work unit
and recommend solutions.
4. Ability to communicate effectively, orally and in writing
with supervisors, peers, subordinates, customers and officials of
a variety of organizations who may come in contact with the
department.
The selection process was carried out in several
stages. In the first stage a screening board found
that of the 135 candidates in the competition, 69,
including the respondents, met the basic require
ments of the position. These 69 were then given
the Public Service Commission's General Adminis
trative Ability Test, Examination E-280A, to
assess the second and third of the ability factors
quoted above and referred to in the reasons of the
Appeal Board as "sub-factors". These two sub-fac
tors were together assigned a maximum of 28
marks. The other two ability sub-factors were
assigned a maximum of 6 marks each, making a
total maximum of 40 marks for the ability require
ment as a whole. The passing score for the ability
requirement as a whole was 60% or 24 marks. In
order to be assessed on the remaining two ability
sub-factors candidates had to obtain a total of at
least 12 marks on the second and third sub-factors.
Twenty-four of the candidates answered at least
27 of the 65 questions in the General Administra
tive Ability Test correctly and were awarded at
least 12 marks out of the maximum of 28 on the
second and third ability sub-factors. They were
then assessed by a rating board with respect to the
knowledge requirement, and those who obtained at
least 60% of this requirement were assessed by
another rating board with respect to the other two
ability sub-factors and the personal suitability
requirement. Seven candidates were found to be
qualified as a result of the entire selection process
and were placed on an "eligible list" in order of
merit. The respondents received less than a total of
12 marks on the second and third ability sub-fac
tors as a result of their answers on the General
Administrative Ability Test, and since they would,
therefore, be unable to obtain the minimum of
60% or 28 marks on the ability requirement as a
whole, even if they obtained the maximum of 6
marks on each of the other two ability sub-factors,
they were not assessed with respect to the other
rated requirements and were in effect eliminated
from the competition.
On their appeal the respondents contended that
58 of the 65 questions on the General Administra
tive Ability Test did not elicit information upon
which the selection board could have assessed the
candidates against the "ability to anticipate, plan
and organize work, set priorities and allocate
staff' and the "ability to analyze problem situa
tions within the work unit and recommend solu
tions." The respondents contended that certain of
the questions elicited information with respect to
other abilities and a considerable number of them
"were not related to the duties and responsibilities
of the position under competition". The respond
ents' contention was in substance upheld by the
Appeal Board.
The content of the General Administrative Abil
ity Test was, at the request of the Public Service
Commission, treated as confidential by the Appeal
Board, and by order of the Court in these
section 28 proceedings it was directed to be bound
separately from the other material in the case, to
be marked confidential, and to be available to
counsel upon an undertaking to maintain its confi
dentiality except as prescribed by the order and
permitted by the Court in the course of argument.
It is, therefore, only possible to refer to the test in
general terms. According to the explanatory ma
terial on the test, which forms part of the non-con
fidential record, it was developed for the Public
Service Commission by the Personnel Psychology
Centre (PPC) as "a selection test for certain entry-
level positions within the Administrative and For
eign Service Category (AFSC) of the Canadian
Public Service." It is said to be designed to assess
certain "component abilities", which I quote
because they are referred to in the reasons of the
Appeal Board:
• the ability to place information in the proper order or best
sequence (i.e., Ability to Analyze and Evaluate, Ability to
Plan, Ability to Organize)
• the ability to select and organize relevant information for the
solution of a problem (i.e., Ability to Analyze and Evaluate)
• the ability to draw conclusions based on given information
(i.e., Ability to Analyze and Evaluate, Ability to Control)
• the ability to anticipate the needs or consequences of a given
situation (i.e., Ability to Plan, Organize, Ability to Direct)
• the ability to follow directions and to evaluate information
according to specified criteria (i.e. Ability to Control)
• the ability to recognize effective written communication (i.e.,
Ability to Communicate in Writing)
It is not clear from the record whether the
position of shift supervisor in the Post Office
would be considered to be an "entry-level position
within the Administrative and Foreign Service
Category", although it is a possible implication of
the reasons of the Appeal Board that it would not.
The use of the General Administrative Ability
Test by a selection board is optional, but thè
explanatory material states that the test, which
consists of 65 multiple choice questions, must be
used in its entirety. The material states that "Un-
der no circumstances can the component parts of
the test be administered as separate assessment
instruments." In the present case the candidates
were required to answer all the questions.
The general conclusion of the Appeal Board as
to the suitability of the test for assessment of the
second and third ability sub-factors is contained in
the following passages from the Chairman's
reasons:
After carefully considering the evidence relative to the first
allegation, 1 am of the opinion that most of the questions asked
on the Public Service Commission's General Administrative
Ability Test, Examination E-280A, did not elicit information
upon which the selection board could have assessed the candi
dates against the "ability to anticipate, plan and organize work,
set priorities and allocate staff' and "ability to analyze prob
lem situations within the work unit and recommend solutions"
sub-factors of the "Abilities" rating factor. As the Department
so aptly pointed out, those "abilities" are required in order to
perform specific duties of the positions under competition.
Therefore, any questions asked must elicit information so that
the selection board can assess the candidates against those two
sub-factors in relation to duties to be performed.
The questions on the examination, which I have refrained
from reproducing at the Department's request, may very well
provide information upon which to assess candidates against
the component abilities, but that is a matter which is not in
issue. Therefore, I will only consider the questions in relation to
the sub-factors and duties of the positions under competition,
and decide upon their relevancy or applicability, accordingly.
In the result, the Appeal Board found that only
seven of the 65 questions on the test were "reason-
ably related to those `abilities' in the context of the
duties to be performed". In allowing the appeals
on this ground the Board pointed out that it was
not challenging the validity of the General
Administrative Ability Test for the purpose for
which it was designed. On this point the Chairman
said:
In conclusion, I wish to state that since the issue in these
cases was not the validity of the Public Service Commission's
General Administrative Ability Test, Examination E-280A, as
a selection tool for assessing candidates for certain entry-level
positions within the Administrative and Foreign Service Cate
gory, nothing in this decision should be inferred as indicating
that it was in any way deficient in that respect.
The issue is whether the Appeal Board commit
ted an error for which its decision may be set aside
under section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10, in allowing the appeals of
the respondents on the sole ground that all but
seven of the 65 questions on the General Adminis
trative Ability Test did not elicit information upon
which the selection board could have assessed the
candidates against the "ability to anticipate, plan
and organize work, set priorities and allocate
staff" and the "ability to analyze problem situa
tions within the work unit and recommend solu
tions", having regard to the duties of the particular
positions under competition.
Section 10 of the Public Service Employment
Act provides that appointments to positions in the
Public Service "shall be based on selection accord
ing to merit" and that they shall be made by
competition or other selection process "designed to
establish the merit of candidates". The selection
process is to be determined by the Public Service
Commission, or those acting for it in a particular
case, but whether a particular selection process is
in fact designed or calculated to establish the merit
of candidates in relation to the qualifications for a
position is subject to review by an appeal board on
an appeal under section 21 of the Act. An appeal
board may allow an appeal on the ground that the
selection process or a substantial or decisive part of
it was not suitable for assessing merit in relation to
certain of the qualifications for the position. In
considering that question in the present case the
Appeal Board did not, therefore, exceed its author
ity or misdirect itself in law. The question whether
a particular part of the selection process is a true
test of merit in relation to certain qualifications for
the position is one of fact. The Appeal Board
concluded that only seven of the 65 questions on
the General Administrative Ability Test would
elicit information on which the selection board
could have assessed the candidates against the two
abilities in issue. In this Court, counsel for the
Crown contended that at least 30 of the 65 ques
tions, or less than half, were suitable for this
purpose. It is not for us to substitute our opinion
for that of the Appeal Board on this disputed
question of fact. On the material before us it
cannot be said, in my opinion, that the applicant
has discharged the burden of establishing that the
decision of the Appeal Board was based on an
erroneous finding of fact of the kind described in
section 28(1)(c) of the Federal Court Act or on a
conclusion that would otherwise amount to an
error of law. I would accordingly dismiss the sec
tion 28 application.
* * *
RYAN J. concurred.
* * *
MACKAY D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.