Canada (Attorney General) v. Clegg, 2008 FCA 189

• Judge: Desjardins, Sexton and Trudel, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 07, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FCA 189;(2008), 380 N.R. 275 (FCA)

Can. (A.G.) v. Clegg (2008), 380 N.R. 275 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. AU.037

The Attorney General of Canada (appellant) v. Neil Clegg (respondent)

(A-474-07; 2008 FCA 189)

Indexed As: Canada (Attorney General) v. Clegg

Federal Court of Appeal

Desjardins, Sexton and Trudel, JJ.A.

May 23, 2008.

Summary:

A competition was held for a rotational position with the Department of International Trade Canada. A psychometric test developed by the Personal Psychology Centre was administered to 370 candidates throughout the world. The instructions provided that candidates were to be given two hours to complete the test. However, due to a clerical error, Clegg was only given 90 minutes to complete the test. Two months later, on the recommendations of the Personal Psychology Centre of the Public Service Commission of Canada, Clegg was given an additional 45 minutes to review the test. His test score dropped from 69% to 66%. Because the pass mark was 72%, Clegg was screened out of the competition. Clegg appealed. The Appeal Board allowed the appeal on the ground that Clegg was not assessed on the same standards as the other candidates. The Attorney General of Canada applied for judicial review.

The Federal Court, in a decision reported at [2007] F.T.R. Uned. 601, dismissed the application. The Attorney General appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - A test developed by the Personal Psychology Centre (PPC) of the Public Service Commission of Canada was administered to candidates in a federal job competition - The candidates were to have two hours to complete the test - Due to a clerical error, Clegg was only given 90 minutes - Two months later, on the PPC's recommendations, Clegg was given an additional 45 minutes to review the test - Clegg was screened out of the competition - The Appeal Board allowed Clegg's appeal, holding that the merit principle had not been adhered to - The Board's decision stated that all of the evidence and the parties' arguments were considered, but made no reference to the evidence of a psychologist (Forster) employed by the PPC - Forster's evidence was crucial to the Crown's position - The Crown applied for judicial review, asserting, inter alia, that the Board ignored evidence - The Federal Court of Appeal affirmed the application's dismissal - More elaborate and informative reasons would have been desirable - However, the Board's reasons had to be read as a whole and not "hypercritically" - The Board was not required to refer to every piece of evidence that was contrary to its finding - A general assertion by a board that it had considered all the evidence could suffice - This was particularly so here, where Forster was the only expert witness and there was a clear correlation between the crux of his testimony and the Board's reasons - The Board found that the accommodation given to Clegg departed from the merit principle, thus rejecting Forster's theory - That finding was open to the Board - See paragraphs 29 to 44.

Labour Law - Topic 9193

Public service labour relations - Job competitions - General - Appeals - Waiver - A test developed by the Personal Psychology Centre (PPC) of the Public Service Commission of Canada was administered to candidates in a federal job competition - The candidates were to have two hours to complete the test - Due to a clerical error, Clegg was only given 90 minutes - Two months later, on the PPC's recommendations, Clegg was given an additional 45 minutes to review the test - Clegg was screened out of the competition - The Appeal Board allowed Clegg's appeal, holding that the merit principle had not been adhered to - The Crown applied for judicial review, asserting, inter alia, that the Board erred in allowing the appeal where Clegg had not objected until after he was advised that he had failed - The applications judge dismissed the application - The Federal Court of Appeal dismissed an appeal - Relief would not be refused on the ground of waiver unless the opposing party established that the applicant was fully informed of the facts and that the waiver was truly voluntary - The Crown did not challenge the Board's finding that the evidence suggested that had Clegg refused the extra time, his participation in the selection process would have stopped there - It was implicit that Clegg had to accept the alternative provided by the Crown if he wanted to maintain his chance of promotion - Accordingly, it could not be said that his waiver was voluntary - See paragraphs 57 to 61.

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - [See Administrative Law - Topic 549 ].

Labour Law - Topic 9203

Public service labour relations - Job selection - General - Merit principle - The Federal Court of Appeal stated that the merit principle, as contemplated by s. 10 of the Public Service Employment Act, was the necessary background to an appeal against an appointment pursuant to s. 21 of the Act - The merit principle was a central aspect of all public appointments - It required not only that consistent standards be set, but that they be applied consistently - In the Appeal Board's determination of whether the merit principle was adhered to, it had to consider both the establishment and application of consistent standards - See paragraphs 21 to 26.

Cases Noticed:

Buttar v. Canada (Attorney General) et al. (2000), 254 N.R. 368 (F.C.A.), refd to. [para. 4].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 15].

Dr. Q., Re (2003), 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 15].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Lai v. Canada (Minister of Citizenship and Immigration) (2005), 332 N.R. 344; 2005 FCA 125, refd to. [para. 15].

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 18].

McGregor v. Canada (Attorney General) et al. (2007), 366 N.R. 206; 2007 FCA 197, refd to. [para. 18].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [para. 19].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 34].

Tradition Fine Foods Ltd. v. Oshawa Group Ltd. et al. (2005), 341 N.R. 96; 2005 FCA 342, leave to appeal dismissed (2006), 353 N.R. 197 (S.C.C.), refd to. [para. 44].

Scherico Ltd. v. P.V.U. Inc., [1989] F.C.J. No. 454 (F.C.A.), refd to. [para. 44].

Evans v. Public Service Commission Appeal Board, [1983] 1 S.C.R. 582; 47 N.R. 255, refd to. [para. 54].

Cyr et al. v. Canada (Procureur général) (2000), 201 F.T.R. 191 (T.D.), dist. [para. 57].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2007 Looseleaf Update), p. 3:6000 [para. 59].

Counsel:

[Not disclosed]

Solicitors of Record:

[Not disclosed]

This appeal was heard on May 7, 2008, at Ottawa, Ontario, by Desjardins, Sexton and Trudel, JJ.A., of the Federal Court of Appeal. Trudel, J.A., delivered the following reasons for judgment for the court on May 23, 2008.