FPSLREB Decisions

Reasons for Decision

Introduction

1 Catalin Obreja, the complainant, was an unsuccessful candidate in an internal advertised appointment process held by Environment Canada to staff MT-05 positions of Meteorologist Instructor in Winnipeg, Manitoba (MB), and of Operational Meteorologist in Esquimalt, British Columbia (BC) and Gagetown, New Brunswick (NB).  In his complaint to the Public Service Staffing Tribunal (the Tribunal), he alleges that the respondent, the Deputy Minister of Environment Canada, abused its authority by not properly and consistently assessing candidates in this process.

2 The respondent denies the allegations and maintains that the complainant was eliminated because he failed to meet all essential qualifications.  It also contends that if there were any errors in the assessment, they do not amount to an abuse of authority.

3 The Public Service Commission (the Commission) did not attend the hearing but made written submissions. It did not take a position on the merits of the complaint.

4 For the reasons that follow, the Tribunal finds that the complainant has not established that the respondent abused its authority in its assessment of the candidates.  While there were a few errors in the assessment of some of the candidates, they were minor and did not affect the overall results of the appointment process.

Background

5 On June 21, 2012, the respondent posted a Job Opportunity Advertisement (JOA) on Publiservice to staff the positions at issue.  It was anticipated that up to four positions would be staffed and that a pool of qualified candidates would be created to staff similar positions of various tenures, language profiles and security requirements across Canada. 

6 The JOA and the Statement of Merit Criteria included the following essential knowledge qualifications:

Knowledge of theoretical and applied meteorology; and

Basic knowledge of the Meteorological Service of Canada’s (MSC) Quality Management System / ISO principles.

7 The assessment process involved a number of steps: screening of the applications, written exam, interview and verification of references. 

8 The complainant was one of 74 candidates.  He was screened in and invited to the written exam, which assessed the two essential knowledge qualifications and several ability and personal suitability qualifications.  Ten of the written exam’s fifteen questions assessed knowledge of theoretical and applied meteorology(K-1). 

9 Mark Grandmaison, Manager – Forecast Services (MT-06) with the Meteorological and Oceanographic Centre (METOC), Halifax, Nova Scotia (NS), chaired the assessment board.  It was comprised of several two-person panels.  Mr. Grandmaison and Derek Kania, of the School of Meteorology in Winnipeg, MB, assessed the portion of the English-language MT-05 exams that pertained to K-1.  Two francophone panel members did the same for the French-language MT-05 exams.  A third panel was composed of Mr. Kania and the chair of the assessment board of an MT-06 process being held concurrently and using the same written exam as the MT-05 appointment process.  This panel assessed the K-1 portion of the exam written by the English-language candidates who applied in both the MT-05 and MT-06 processes.

10 According to Mr. Grandmaison, all board members were experienced meteorologists and some had served on assessment boards before.  Structured training or briefings were not provided before the marking commenced; rather, Mr. Grandmaison had individual conversations with the board members and told them to compare the candidates’ answers against the Answer Key, which had been mailed to them with instructions on its use.  Panel members were to assess candidates individually, compare their results with each other and come to consensus on the final mark.  The Answer Key included a reference to “other suitable answers.”  Panels were instructed to notify other board members if they considered a candidate’s answer suitable even though it was not in the Answer Key.

11 Mr. Grandmaison and Mr. Kania’s panel assessed 43 exams, including the complainant’s exam.  Mr. Grandmaison explained that this was done over several days, during which they discussed and came to consensus on the marks to be assigned.  Mr. Grandmaison recorded his panel’s consensus for each candidate in summary documents for use in the informal discussions.  These were not exhaustive as they were intended to pass on information about where a candidate had done well.  Other panels did not prepare similar documents.

12 Mr. Grandmaison did not review the marking of the written exams but he noted that Mr. Kania marked all the English-language exams.

13 A total of 35 candidates successfully completed all of the stages of the assessment process and were found qualified.  They consisted of twenty-seven English-speaking candidates and three French-speaking candidates who had applied on the single MT-05 process, and five English-speaking candidates who had written the combined MT-05/MT-06 exam.

14 The complainant passed the K-2 section of the written exam but did not obtain the required pass mark of 52.8 points for the K-1 portion, having achieved a score of 48 points.  On October 26, 2012, he was informed that his application would not be given further consideration. 

15 On December 19, 2012, the complainant had an informal discussion by telephone with Mr. Grandmaison.  In the course of this discussion, Mr. Grandmaison agreed that the complainant should have received one more point for his answer to Question 14, one of the questions that assessed K-1.  However, this did not change the complainant’s overall results, as he still needed 3.8 points to meet K-1.

16 On March 22, 2013, the respondent published a Notification of Appointment or Proposal of Appointment (NAPA) for the appointment of one candidate to the position of Meteorologist Instructor, in Winnipeg, MB.  On April 4, 2013, the respondent issued a NAPA for the appointment of two candidates to positions of Operational Meteorologist, in Gagetown, NB.

17 On April 8, 2013, the complainant filed two complaints under s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA) in relation to these appointments.  On July 23, 2013, the complaints were consolidated for the purpose of a hearing, in accordance with s. 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116, s. 3.

Issue

18 The Tribunal must determine if the respondent abused its authority by improperly assessing the K-1 essential knowledge qualification (knowledge of theoretical and applied meteorology).

Analysis

19 Section 30(1) of the PSEA requires that appointments be made on the basis of merit.  Section 30(2) of the PSEA provides that for an appointment to be made on the basis of merit, the Commission or the deputy head to whom the appointing authority has been delegated must be satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency. 

20 Section 77(1) of the PSEA provides that a person in the area of recourse may make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of an abuse of authority by the Commission or the deputy head in the exercise of their respective authorities under s. 30(2) of the PSEA. 

21 As the Tribunal has confirmed in many decisions, the Tribunal’s role in dealing with allegations regarding assessment of qualifications is not to re-assess the candidates or conduct a new appointment process.  The Tribunal may, however, review an assessment to determine whether there has been an abuse of authority.  See Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 42-46.

22 The complainant bears the burden of proving, on a balance of probabilities, that the appointment process was tainted by an abuse of authority.  See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at paras. 49 and 55.

23 The complainant alleges that the respondent abused its authority by failing to assess all candidates properly and consistently.  More specifically, he contends that in the assessment of the written exam, similar answers did not get similar marks and correct answers other than those that were expected were refused.  The complainant further alleges that because Mr. Grandmaison, as chairperson of the multi-panel assessment board, failed to review every exam to ensure it had been marked consistently, errors and inconsistencies occurred in the marking that amount to abuse of authority.

24 The respondent acknowledges that some errors occurred in the marking but submits that they did not affect the results of the process.  It contends that the complainant has presented no evidence that he was not appointed because of an abuse of authority or that any of the appointments were not based on merit.

25 The complainant explained that after he filed his complaints, he reviewed the Answer Key in detail.  According to him, itcontained no instructions to guide the assessors on what could be deemed a suitable answer and on the application of the marking scheme in those circumstances.  He compared his answers to the answers provided by every successful candidate and found mistakes and inconsistencies in the marking of his and of several successful candidates’ answers.  In his view, the flexibility of the Answer Key played a decisive role in what he considers to be the lack of consistency in the marking.

26 On the basis of his review, he prepared a document that he titled “Irregularities found in the written exam correction process” (the Irregularities document).  This document, the complainant’s and the successful candidates’ written exams, and the respondent’s chart tabulating the marks were entered into evidence.

The assessment of K-1

27 Questions 5 to 14 of the written exam assessed the qualification K-1. In his testimony, Mr. Grandmaison explained what each of these questions assessed, how they were rated and how the points were assigned. 

28 Through the Irregularities document and his testimony, the complainant commented on his assessment and those of specific candidates regarding several exam questions.  He particularly outlined the answers where he believes he should have received additional points in comparison to the points received by other candidates.  The complainant also sought to establish, through his own testimony and his cross-examination of Mr. Grandmaison, that there were errors and inconsistencies in the assessment of several other candidates as well.

Question 6

29 This question askedcandidates to explain the procedures and data sources they would use to analyze fronts on a given type of surface analysis. For a maximum of 10 points, the Answer Key listed 13 steps and provided for other suitable answers. The complainant was awarded 7.5 points for his answer.

30 In his Irregularities document, the complainant asserts that his answer was better than several other candidates’ answers, including Candidate 33, who received full marks.  The complainant claimed he should also have been given full marks. 

31 The complainant did not question Mr. Grandmaison about his own marking or the marking of Candidate 33 for this question. 

32 The Tribunal notes that in the summary document he prepared, Mr. Grandmaison states that the complainant’s answer to this question was good, and lists the elements for which he received points and some of the ones that were missing.  The summary document for Candidate 33 simply states 10/10.

33 The Tribunal finds that the complainant has not demonstrated that his answer to this question was improperly assessed.

Question 7

34 In Question 7, composed of four parts, candidates were to use a tephigram (a diagram used in weather analysis and forecasting) to identify various elements that could be found “below 600 hPa [hectoPascal]” on this diagram. 

35 According to the complainant, the assessment of the various parts of Question 7 demonstrates the inconsistencies in the marking.

Question 7b)

36 This sub-question asked candidates to indicate the “ƟW [theta-w] of the air mass(es)” (the parties did not explain the meaning of ƟW [theta-w]).  The answer sought was “4°C and 14°C” and was worth two points. 

37 In his Irregularities document, the complainant claims that the Answer Key did not provide guidance on the range of acceptable answers and was arbitrarily applied for several candidates. 

38 The complainant was awarded full marks for his answer to this question.  He questioned Mr. Grandmaison about the assessments of Candidates 3, 16, 33, 41, 55 and 62.

39 Candidate 33 received one point for answering “5 and 10” whereas Candidate 41 did not receive any point for “cold air mass is 5C and warm air mass is 10C.”  Mr. Grandmaison explained that Candidate 33 received one point because “5” was a sufficiently suitable response for the first element sought but that a correction was required to the mark given to Candidate 41, who should have received one point for the answer provided.  A correction was also required to the mark given to Candidate 16, who answered “2C and 14C and 17C” and received 1.5 point; this candidate should have received only one point for this answer.

40 The complainant pointed out that Candidate 55 received only one point for answering “below 4000 ft. - 4°; between 6000 ft. and 21000 ft. - 14o; between 26000 ft. and tropopause - 20o,” yet this answer contained “4” and “14.”  Similarly, Candidate 62 received 1.5 point for the answer “the highest is 18-19oC; the mid-level is 14oC; the lowest is 3-4oC,” which also contained “4” and “14.”  Mr. Grandmaison briefly discussed the answer given by Candidate 55; he explained how this candidate added incorrect information that led the board to conclude that this candidate did not have a full understanding of the subject.  Mr. Grandmaison indicated that the board deducted half a point from the possible two-point maximum mark for Candidate 62, because this candidate provided a third temperature.

41 The complainant also noted that Candidate 3, who wrote the exam in French, was awarded 1.5 point for answering “3, 14 et 18.”  Mr. Grandmaison stated that he could not comment on this since he did not assess the French-speaking candidates.

42 The Tribunal concludes that the errors uncovered in the marking of Candidates 41 and 16 resulted in small changes of their scores that would not affect their overall results, qualifying them in this process.  They were not serious errors.

43 As for Candidate 3, although Mr. Grandmaison did not review the French exams, the Tribunal notes that this candidate would still be deemed qualified even if this candidate’s mark were reduced from 1.5 to one point.  

Question 7c)

44 This sub-question asked candidates to indicate the heights, in feet, of the bases and tops of the mixing zones.  The expected answer was “4000 [feet] and 6100 [feet]”, and was worth two points. 

45 The complainant answered that the “base of the main mixing zone is at approximately 4000 feet and that its top is at 6300 feet” and received one point.  In his Irregularities document, he claims that his answer warranted two points according to the Answer Key and in comparison to answers provided by Candidates 3 and 68.

46 The complainant questioned Mr. Grandmaison about his mark and the marks given to Candidates 13, 37, 55, 62 and 68. 

47 According to Mr. Grandmaison, the complainant received one point for the first part of his answer (base at 4000 feet) but no points for stating that the top was at approximately 6300 feet.

48 Mr. Grandmaison explained that Candidate 13 did not receive any points for incorrectly stating that the top, not the base, was at 4000 feet; this showed that this candidate did not understand the problem.  Candidate 62, who answered that “the lower mixing zone is 4000 feet to 6000 feet and the higher mixing zone is at approximately 17000 feet – 26000 feet,” received one point for identifying that the base of the mixing zone is at 4000 feet.  Candidate 55 received two points for stating “the first mixing zone is based at about 4000 feet and the top of the mixing zone is about 6100 feet.”  Although this candidate also included incorrect information about a second mixing zone, the board considered that it had already penalized the candidate for this in the marking of Question 7b) and it did not deduct further marks.

49 Mr. Grandmaison indicated that a correction was required to the marking of Candidate 37, who should have received one point, not zero, for answering that “the base of the mixing zone is at about 4000 feet ... and the top of the mixing zone is 6000 feet above sea level.”

50 Mr. Grandmaison indicated that he could not speak to the exam of Candidate 68, who received two points for answering “From 4000 to 6350 feet,” because it was marked by the MT-05/MT-06 panel.  Similarly, Mr. Grandmaison did not comment on Candidate 3 about whom the complainant raised allegations in his Irregularities document, because this candidate wrote the exam in French and was marked by another panel.  The members of that panel were not called to testify.  Candidate 3 was awarded 1.5 point for answering “Base 1: 4000 et Sommet 1: 6000 pieds (...).” 

51 The Tribunal has reviewed all the qualified candidates’ exams and notes that results other than 6100 feet were not accepted for the top of the mixing zone in the exams marked by Mr. Grandmaison and Mr. Kania.  While Candidate 3 and Candidate 68 may have received points in error, the Tribunal notes they both would still qualify if their marks were to be reduced by 0.5 and 1 point respectively. 

52 The Tribunal finds that the complainant has not demonstrated that his answer to this question was improperly assessed or that serious errors had occurred in the assessment of Candidates 37, 3 and 68.

Question 7d)

53 This sub-question asked candidates to indicate “the heights of the front(s) in feet.”  The answer sought was “6100 [feet]” and it was worth one point. 

54 The complainant did not receive any points for answering that the “front is located at 4000 ft. (approximately 1200 ft. above the surface) and the frontal mixing zone is 1700 ft. thick.”  In his Irregularities document, he contends that he should have been awarded one point for his answer, given that Candidate 68 received one point for answering “6350 feet.” 

55 The complainant questioned Mr. Grandmaison about the assessment of Candidates 4, 13 and 17.  He did not question him about the marking of Candidate 68’s exam.

56 Candidate 4 received 0.5 points for stating “6100 feet to 19,500 feet for warm front” while Candidate 13 did not get any point for answering “the front is from 4000 feet to 6100 feet.”  Mr. Grandmaison testified that he could not specifically recall why these candidates were marked this way. 

57 Candidate 17 answered “front is located between 4000 – 6000 feet” and was awarded 0.5 points.  Mr. Grandmaison stated that this exam was marked by the MT-05/MT-06 panel. 

58 The Tribunal has reviewed all the qualified candidates’ answers to Question 7d) and notes that results other than 6100 feet were not accepted in the exams marked by Mr. Grandmaison and Mr. Kania’s panel.  In addition, of the candidates whose exams were marked by the MT-05/MT-06 panel, only Candidate 17 and Candidate 68 received marks for answers other than 6100 feet.  

59 Although no indication was provided by Mr. Grandmaison as to whether the marks assigned to Candidates 4, 13 and 17 were warranted, the Tribunal notes that half a point is the potential variation in the scores and that each of these candidates would still have qualified had the difference been deducted from their overall scores.  Similarly, Candidate 68 would still have qualified if one point were deducted from this candidate’s overall score, in addition to the point already discussed for this candidate at Question 7c). 

60 The Tribunal finds that the complainant has not demonstrated that his answer was improperly assessed or that there were serious errors in the assessment of the candidates at Question 7d).

Question 8

61 This question asked candidates to use a provided diagram, called a “hodograph,” to answer five questions related to the weather front that the diagram depicted.  Specifically, they were to indicate whether the hodograph depicted a cold front or a warm front, locate the warm and cold air, give the orientation of the front, give its speed and direction, situate the surface front relative to the weather station, and give the wind shear across the front. 

Question 8d)

62 Candidates were to give the speed and direction of the front.  The direction to be read from the hodograph was “150 [degrees]” and the speed was “4 knots”.  A speed of 3 or 5 knots was also acceptable.  A correct answer was worth two points.

63 The complainant answered “approximately 10 knots NNW [north-northwest]” and was not awarded any points.  In his Irregularities document, he contends that the direction indicated in the Answer Key is wrong and he claims one point for his answer.  He argues that the practice in meteorology is to describe the propagation of fronts by the directionthey are going to. 

64 Mr. Grandmaison stated that the complainant indicated the wrong speed and direction.  The complainant would have received one point if he had answered that the direction was north-northwestward. 

65 Mr. Grandmaison explained that when referring to wind direction, the convention is to indicate where the wind is coming from.  Therefore, true north being 360°, a 150o wind indicates that the wind is from south-southeast (SSE) to north-northwest (NNW).  If one states that the wind is NNW, as the complainant did, it is understood to mean that the wind is moving from NNW.  For this question, one point would be awarded for stating that the front direction was from SSE to NNW, or north-northwestward.

66 The complainant questioned Mr. Grandmaison about the answers that Candidates 1, 26, 27, 44 and 49 provided to this question.  Mr. Grandmaison conceded that he would have given a different mark to some of these candidates.

67 Candidate 1 answered “(...) 5 knots and moving to the southeast from 330 degrees to 150 degrees” and Candidate 26 answered “north-northwestat about 5 knots.”  They were each awarded two points for their answers.  Mr. Grandmaison stated that each candidate should have received only one point, for the wind speed.  Candidate 27, whowas awarded one point for answering that “the front is travelling [at about] 7 knots east-southeast,” should not have received any points.

68 On the other hand, Candidate 44, who did not receive any points for answering “5 knots from the northwest,” should have received one point for the wind speed.  Candidate 49 should have received two points, not one, for answering “It is moving north-northwestward at about 5 knots.”

69 The Tribunal notes that, with the exception of Candidate 27, these errors do not affect these candidates’ overall results and they are still qualified in the process.  Had Candidate 27’s mark been reduced, his or her overall results would have dropped from 53 to 52 points, which is below the pass mark of 52.8 points for K-1.  However, the Tribunal was not presented with any evidence that this candidate, whose mark was already the lowest among qualified candidates’ marks, was one of the appointees.  The Tribunal also points out that the candidates were assessed by panel members on consensus and not by any individual board member alone, including Mr. Grandmaison.  Thus, the Tribunal cannot necessarily conclude, based on the evidence presented, that Candidate 27  was not qualified.

70 As for the complainant, he has failed to demonstrate that his answer to Question 8d) was not properly marked.

Question 8f)

71 Candidates were to indicate the wind shear across the front.  The expected answer was “24 knots [per] 2000 feet or 12 knots [per] 1000 feet”.  “23 knots [per] 2000 feet or 25 knots [per] 2000 feet”were acceptable answers.  The question was worth two points.

72 The complainant answered “approximately 20 knots” and did not get any point.  In his Irregularities document, he claims one point for his answer by comparison to Candidates 25 and 57. 

73 The complainant asked Mr. Grandmaison why Candidate 57, who answered “20 knots”, received one point for this answer.  Mr. Grandmaison indicated that this point was in his view awarded in error.

74 The complainant did not ask Mr. Grandmaison why Candidate 25 was awarded half a point for the answer “the wind shear across the front is approximately 22 knots.” 

75 The Tribunal finds that the complainant has not demonstrated that his answer to Question 8f) was not properly assessed.  As to Candidate 57, the error in the marking did not affect this candidate’s overall results.  This candidate would still have qualified in the process without the point in question.

Question 9

76 Candidates were to use a provided figure to answer three questions about the wind field depicted.

Question 9c)

77 Candidates were to indicate the heightor range, including units of measure, of a given wind maximum.  The expected answer provided for a height that “(...) starts at [about] 900 metres and ends at [about] 1300 metres.” 

78 Mr. Grandmaison stated that the Answer Key should have also included the expected range of 30 to 40 kilometres. Candidates were marked accordingly if they provided the range.  

79 Mr. Grandmaison explained how the question was marked.  Candidates received two points when they provided the range of 30 to 40 km or the correct height.  Moreover, if they provided the range and the height and one of the two elements of the answer was wrong, they were marked down for the wrong element.

80 The complainant answered “approximately 1000 feet above surface or 30 kilometres” and was awarded one point, for the range of 30 kilometres.  

81 Mr. Grandmaison stated that the complainant would have been awarded full marks if his answer had only included the range of 30 kilometres, instead of also adding the height in feet, which should have been in metres.

82 The complainant questioned Mr. Grandmaison about the assessment of Candidates 36, 57, 39, and 68.

83 The complainant argues that he should receive an additional point for his answer, given that Candidate 36 received full marks of two points for stating “about 30 km away from the radar site at 1100 feet.” 

84 Mr. Grandmaison acknowledged that an error was made in giving Candidate 36 one point for a height of 1100feet, given that the measurement unit sought was 1100 metres.  The Tribunal notes that this one-point concession does not affect the overall results of Candidate 36, who remains qualified.

85 The complainant also questioned Mr. Grandmaison about Candidate 57, who was awarded one point for answering “it is the second ring near 1200 feet.”  No range was provided.  Mr. Grandmaison acknowledged that this candidate used feet rather than metres as a unit of measurement.  He stated that the candidate got one point for answering 1200, which he said was “half-wrong,” and that the board recognized “1200” was the correct value for the height. 

86 Given Mr. Grandmaison’s testimony about the heights, in feet, provided by the complainant and by Candidate 36, the Tribunal finds that the board erred when it awarded one point to Candidate 57 for a height of 1200 feet, a measurement actually equivalent to 365.76 meters and therefore clearly incorrect. 

87 The complainant questioned Mr. Grandmaison about Candidates 39 and 68.  Candidate 39 answered “1100 feet high (around 38 km away)” and Candidate 68 answered “30 km” and did not get any points.  It appears that neither received points for their answers.  Mr. Grandmaison could not comment because these exams were corrected by the MT-05/MT-06 panel.  However, given Mr. Grandmaison’s testimony about how answers to this question were marked, the Tribunal concludes that Candidate 39 should have received one point for the range element in its answer, and that Candidate 68 should have received two points for providing a correct range in its answer.  

88 The Tribunal has already found that the point awarded in error to Candidate 57, at Question 8f), does not affect this candidate’s overall results.  Similarly, this candidate would still qualify if another point were deducted from this candidate’s mark at Question 9c).  

89 The complainant, for his part, has failed to demonstrate that his answer to Question 9c) should have been accepted. 

Questions 10, 12a), and 13b)

90 In his Irregularities document, the complainant also argues that by comparison to the marking of several candidates for these questions, he should have received more points for his answers to Questions 10, 12a) and 13b).  The complainant did not question Mr. Grandmaison about his own assessment or the assessment of these other candidates for these questions but in his testimony, Mr. Grandmaison explained why the complainant received 5 points for Question 10. 

91 The Tribunal also notes that the summary document prepared for the complainant explains why he was awarded six points for Question 12 (which included two points for Question 12a) and 4.5 points for Question 13 (which included 2.5 points for Question 13b).

92 The Tribunal finds that the complainant has failed to establish that the marks he received for Questions 10, 12 and 13 were not appropriate.

Conclusions regarding the assessment of K-1

93 The complainant essentially argues that he was not successful because of errors and inconsistencies in his assessment in relation to the successful candidates, and that the appointees are not necessarily qualified.  He also maintains that all the exams should have been reviewed by the chairperson to ensure that consistency had been maintained.

94 When there are a large number of candidates, it is not always possible to have all assessments conducted by the same board members.  While there is no requirement to have the same board member(s) assess every candidate, steps should be taken to limit the variables in the assessment and to ensure that consistency is maintained.  See Bizimana v. Deputy Minister of Public Works and Government Services, 2014 PSST 3 at para 31.  The Tribunal is satisfied that such steps were taken in this case. Mr. Grandmaison has testified that the assessments were conducted by panels of experienced meteorologists whom he had instructed to notify other board members when they accepted suitable answers that were not in the Answer Key. 

95 While it appears that, on a few occasions, the French-language panel or the MT- 05/MT-06 panel accepted answers without necessarily informing the other panels, and that some errors also occurred in the marking of the exams by Mr. Grandmaison and Mr. Kania’s panel over the course of the assessment, the complainant has not convinced the Tribunal that this so affected the results as to put into question the validity of the assessment.

96 The Tribunal has reviewed the Answer Key, the complainant’s exam and the exams of the other candidates to which the complainant drew the Tribunal’s attention during his testimony and the cross-examination of Mr. Grandmaison.  It finds that while errors did occur in this process, the complainant has not shown that they adversely impacted either his candidacy or the process in general, or that they are serious enough to constitute an abuse of authority. 

97 Furthermore, the Tribunal has also reviewed the exams of the other candidates referred to in the Irregularities document, and about whom the complainant did not question Mr. Grandmaison.  The Tribunal notes that the marking of their exams is generally consistent with the other candidates’ markings and with Mr. Grandmaison’s testimony about acceptable answers.

98 Abuse of authority is more than simple errors or omissions.  See Tibbs at para. 65.  The errors or corrections identified by Mr. Grandmaison are small, they generally involve only one question for each of the few affected candidates and they do not modify the overall results of this process as every candidate would have unquestionably remained qualified, with the possible exception of Candidate 27.  There is no indication in any event that this latter person was one of the appointees.

99 The complainant has failed to establish that the respondent abused its authority in the marking of the written exams.While the complainant does not agree with his assessment, he has not provided any evidence that his exam was not properly assessed overall, or that the board abused its authority and committed serious errors in the assessment.

100 The Tribunal concludes that the complainant’s allegations of abuse of authority in the assessment of the essential qualification K-1 are not founded.

Decision

101 For all these reasons, the complaints are dismissed.

Lyette Babin-MacKay

Member

Parties of Record

Tribunal Files:

2013-0145 and 2013-0146

Style of Cause:

Catalin Obreja and the Deputy Minister of the Environment

Hearing:

February 13 and 14, 2014,
April 23 and 24, 2014
Toronto, Ontario

Date of Reasons:

July 2, 2014

APPEARANCES:

For the complainant:

Crystal Stewart

For the respondent:

 Pierre-Marc Champagne

For the Public
Service Commission:

Luc Savard
(Written Representations)