HomeMy WebLinkAbout1997-0058.Kuntz.02-05-07 DecisionONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396
GSB#0058/97, 1361/98, 0081/99
UNION#97C197, 97C198, 98C520, 99C089
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Kuntz)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Municipal Affairs and Housing)
Employer
BEFORE Belinda Kirkwood Vice-Chair
FOR THE GRIEVOR Ed Holmes
Counsel
Ryder Wright Boyle & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Hiroko Sawai
Counsel
Legal Services Branch
Management Board Secretariat
2
Jim Tober
Corporate Compensation Specialist
Compensation Policy, Bargaining Units
Management Board Secretariat
Sunil Kapur, (on first day)
Counsel
Legal Services Branch
Management Board Secretariat
HEARING DATES: December 17, 1998; March 8 and 29, 1999,
September 27, 1999, October 5 and 25, 1999,
November 1 and 2, 1999; February 17 and 28, 2000,
March 9 and 28, 2000, May 9, 15 and 16, 2000, July
25 and 26, 2000, September 18 and 19, and 25,
2000, October 23, 2000; January 22, 2001, February
20, 2001, March 26, 2001.
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DECISION
The grievor has been employed with the Ministry since December 1974. He was a Plans
Examiner from 1979 to 1984, and then a Roofing Specialist from 1985 to 1992. He was
surplused in 1992. He grieved and the issue was resolved by placing him in the position
of Services Supervisor 2, Architectural Technologist. He unsuccessfully applied to three
job competitions for the position of Building Code Advisor. As a result he launched the
three grievances, which are the subject of this decision.
The grievor claims that he ought to have been given the position, as of approximately
January 1997, the filling of the first vacancy. Notice was given to the successful
candidates who are still employed with the Ministry but they chose not to appear. Notice
was not given to the successful candidate of the first competition as he is no longer
employed with the Ministry and would not be affected by this decision.
The Position
Dr. Arlani, the Manager of Code Development and Training Section of the Ministry of
Municipal Affairs and Housing, Housing Development Branch, testified on behalf of the
Employer.
Dr. Arlani developed the Job Position Specification for the Building Code Advisor, (“the
Advisor”) which came into effect as of January 1, 1980. The purpose of the position is to
provide “advice and interpretation on the Building Code Act and on all requirements or
the Building Code that are not performance oriented. To assist in the development and
maintenance of regulations not requiring engineering expertise.”
Dr. Arlani testified that the Advisor Position has three distinct functions, Ontario
Building Code (“Code”) interpretations and advisory functions, training others on the
Code, and assisting in the redrafting the Code.
The department which now has approximately 18-21 people, receives approximately 150
to 200 inquiries a day, which include inquiries from the public, from the internet site,
from the Buildings Code Commission (“BCC”) and the Building Material Evaluation
Commission (“BMEC”), municipal building officials, fire officials, engineers, builders,
contractors and occasionally Members of Parliament. The Advisor receives
approximately 15-20 inquiries a day on the interpretation and application of the Code.
Although most of the requests for information and clarification from the public are dealt
with immediately, it is government policy that the Advisor must provide analysis for both
the BCC and BMEC and will advise each commission what is required from their
inquiries within five days.
The regulatory function requires analysis of the Code and its regulations, and of the
National or American Codes and the identification of problems in the Code. The Branch
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is involved in public consultation and with writing the Code, which is overhauled
approximately every five years.
The Housing Development Branch is the only branch in Canada that has a comprehensive
training program on the Code. The branch writes all the courses and modifies the courses
on the Code. It does training for the delivery of these courses to colleges, universities,
professional organizations such as those for engineers, architects or technologists. In
1997, the branch had to rewrite fifteen courses to reflect changes to the 1997 Code. Each
Advisor was responsible for giving two courses.
In Dr. Arlani’s view, the position required a comprehensive and current knowledge of the
Code and related regulation, and of the administrative protocol required by the Ontario
Building Code Act. It also required extensive experience in building design and
construction, minimum training as a technician, knowledge of building materials
procedures and standards, communication and analytical skills. The position required a
background in an area, such as in municipal enforcement, private sector design firms, or
work in other governmental agencies that have worked with the Code. It was also
necessary to have sound judgment to deal with inquiries without exposing the Branch to
liability.
The Competitions
Dr. Arlani had sat on over twenty competitions. As a supervisor, he saw his role as
analyzing the position and ensuring that the criteria for selecting the candidates reflected
the job specification and the job posting, and for ensuring that all the applications were
evaluated on the same criteria. His role was to ensure that the interviews of the
successful applicants were conducted impartially, and that proper procedure was
followed in finalizing the scores.
Competition #1 No. MAH-30/96
The first job competition arose when Mr. Mondisor vacated the Advisor position. The
job was posted on October 18, 1996, with a closing date of November 8, 1996. The
competition was restricted to Ontario Public Service employees. Dr. Arlani drafted the
job posting based upon the requirements and qualifications required for the position. The
posting was as follows:
Job Posting for Building Code Advisor
Restricted
This challenging position is responsible for providing advice/interpretation on the
Building Code Act and assisting in the development/maintenance of regulations
not requiring enginerring (sic) expertise. You will: analyse design problems and
provide recommendations for Code compliance/problem resolution; evaluate
existing building-related requirements (sic); recommend new
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regulations/amendments to the Code; prepare reports; organize workshops;
represent the branch/ministry on committees.
Location: Toronto
Area of Search: Within commuting distance of Toronto
Qualifications: Comprehensive knowledge of the Building Code Act and related
regulations; extensive experience in building/design construction and knowledge
normally acquired through a certificate as a technician in structural engineering,
fire protection or architecture; good knowledge of building materials, procedures
and standards; excellent communication skills’ good analytical skills; ability to
travel.
Return resume to File #MAH, Ministry of Municipal Affairs and Housing, Humans
Resources Branch, 3rd Floor, 777 Bay Street Toronto, Ontario, M5G 2E5 no later
than Nov.8, 1996.
Fourteen people applied for the position, including the grievor. The Employer did not
send the grievor a letter of acknowledgement of his application, but his application was
stamped as received and was considered.
Dr. Arlani asked two Assistant Managers, Mr. John Gryffyn and Mr. Alec Antoniuk to
assess the resumes. Mr. Antoniuk has been the Assistant Manager of Housing and
Development Branch, an aside to the Code Unit of the Code Development and Training
section since 1989, when he joined the Ministry and was responsible for Code
interpretations. Mr. Gryffyn was also another Assistant Manager in the department, who
reported to Dr. Arlani.
Mr. Antoniuk prepared the criteria and screening sheet for reviewing the resumes. The
resumes were assessed against four categories, building design and construction
experience, technical experience, knowledge of the Building Code and knowledge of
building and standards. Mr. Antoniuk and Mr. Gryffyn scored the resumes individually
and then met with Dr. Arlani to determine who should be interviewed. Mr. Antoniuk and
Mr. Gryffyn rated the applicants on the basis of their resumes into three categories,
qualified, marginally qualified, and not qualified. They considered eight of the applicants
as qualified, four as marginally qualified, and two as not qualified. The grievor was
considered marginally qualified. The committee decided to only interview those whose
resumes showed that they were qualified. As a result, the committee did not interview
the grievor.
The interview panel was composed of Dr. Arlani, Mr. Gryffyn, Mr. Antoniuk and Mr.
Jim Tober from Human Resources. The Chair of the panel was Dr. Arlani. The panel
interviewed Albert Charrion, Bill Hamilton, Norm Kevilovski, Christine Mak, Michael
Ng, Doug Overbo, Mr. Mario Simonato and Henry Wain on December 9, 10 and 11,
1996.
The interviews took approximately one hour to one hour and a quarter each, and then
were followed by a written component, which took an additional hour. Dr. Arlani set the
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standard for choosing the successful candidate at 50% for the communications aspect and
50% on the technical aspect in the written component, and 70% overall on the interview
and written component combined.
A job offer was made to Doug Overbo on January 21, 1997, after his references were
checked and found to be satisfactory. Doug Overbo exceeded the Employer’s standard
after his lowest score by the panel on the interview of 23 questions was 81%, and his
written portion scored 82%, for an overall average of 81% to 82%. There were no other
comparable candidates.
Competition #2 No. MAH 78/98
A second competition arose when Doug Overbo left the department to take a position in
New Brunswick and another employee retired. As a result, in the second competition,
there were two vacancies. The positions were posted on June 8, 1998 with a closing date
of June 30, 1998. There was no material difference in this from the job posting for the
first competition.
There were ten applicants, including the grievor. As in the previous competition, the two
Assistant Managers reviewed the resumes against the criteria established by Mr.
Antoniuk. They did not weigh the categories, but looked to see if the applicants
substantially met the qualifications. They then met with Dr. Arlani to decide who should
be interviewed. As there was only one candidate whom the panel considered qualified
for the position, they decided to interview three others who were marked ‘marginally
qualified’. The grievor was among one of those interviewed. The interviews were
conducted on August 31, 1998.
Again the process was similar to the first competition. There was an interview and a
written component. The written portion was reviewed by Mr. Gryffyn for its technical
merit, and by Mr. Antoniuk for communication skills. The interview portion was worth
80 points and the written portion 30 points, for a total of 110 points. The criteria for the
second competition was to have an overall score of 70%, with 50% on the technical
aspects and 50% for the communication aspects in the written portion.
The interview was composed of sixteen questions. Each candidate was asked the
questions in the same order, and was told that they could use the Code for reference.
They were told that they had as much time as they required.
At the end of the interview, Mr. Tober explained the procedure to each candidate for the
written assignment and obtained a list of references, and the consent of the candidates to
allow the panel to contact the references. The consent form was left with the written
assignment. The Employer did not have the grievor’s consent and reference form. There
was no evidence that any references were called.
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The questions were marked against model answers, which were before each panelist.
The witnesses each scored the individuals after each question in the interview was
answered. Although there was some discussion after each interview, each panelist
maintained their individual scoring. The scores were then averaged.
The panelists ranked the candidates, on the basis of 110 points in the interview and
written portion, in the following order, after averaging the scores, first Bill Hamilton
(68.5 points, which included a score of 10 out of 10 in the technical portion and 15 out of
20 for communication skills), second the grievor (50.75 points which included 0 out of 10
in the technical portion and 15 out of 20 for communication skills), and third Gallina
Platus (45.25 points, which included 5 out of 10 in the technical portion and 12 out of 20
for communication skills). Shane Stein had withdrawn his application. As no one had
obtained a combined score of 77 points, which was the 70% threshold, the Employer
decided to have another competition, but open the competition to both public and private
sectors.
Competition #3 No. MAH-144/98
The third competition for two positions was posted on October 26, 1998 with a closing
date of November 17, 1998. The only difference in this Job posting was that the area of
search was still defined within commuting distance of Toronto, but the competition was
expanded to allow for applications outside the Ontario Public Service Employees. The
panel received twenty-five applications.
In this competition, Dr. Arlani gave Mr. Antoniuk and Mr. Gryffyn the task of vetting the
resumes. Dr. Arlani then reviewed them against an expanded criteria, which was still
related to the job posting and the position. Initially, as the grievor was the only candidate
in this competition who had also applied in the second competition, Dr. Arlani was going
to use the same questions, and rely on the grievor’s interview scores. However, on the
advice of Human Resources, he decided to change the questions, and decided that it was
not appropriate to use the grievor’s previous results. The panel decided to interview the
grievor.
Mr. Tober was no longer on the selection panel. The interviews were conducted on
December 16, 1998, with the exception of the grievor’s, which was conducted on
December 23, 1998. There was no reason given for the difference in timing.
This time the interview portion was marked on the basis of 80 points, and the written
portion was worth 20 points, which was added to create the final score. The threshold
was again 70% overall, and the written assignment was worth 50% for technical skill and
50% for communication skills. The panel decided that if there were internal candidates
within ten marks of each other they would scrutinize them carefully and hold more
interviews if necessary.
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The questions on the third competition remained similar in nature to those from the
second competition. There were fourteen basic questions and two general questions to
allow the candidate to expand on any of their qualifications or to include anything which
the candidate believed was missing from the interview. Again each candidate was asked
the questions in the same order and the scoring was done in the same manner.
After the candidates were interviewed, Mr. Antoniuk gave them the written assignment,
asked for their references and consent to contact them.
Seven people were interviewed. The top candidates were all external candidates. They
were Mr. Durham, Ann Reid and Ben Pucci. They had the following scores:
Mr. Durham was given 63 points by Dr. Arlani, 64 points by Mr. Antoniuk, and
66 points by Mr. Gryffyn on the interview, which averaged was 64.5 points for a
total score including the written portion, of 81.5 points out of 100.
Ann Reid was given 68 points by Dr. Arlani, 58 points by Mr. Antoniuk, and 67
points by Mr. Gryffyn, on the interview, which averaged was, 64.5 points for a
total score including the written portion, of 80.5 points out of 100.
Ben Pucci was given 65 points by Dr. Arlani, 68 points by Mr. Antoniuk, and 66
points by Mr. Gryffyn on the interview, which averaged was 66.3, for a total score
including the written portion of 80.3, points out of 100.
The grievor who placed last, after Gary Dolch and Bill Stamatopoulous was given
45 points by Dr. Arlani, 38 points by Mr. Antoniuk, and 38 points by Mr.
Gryffyn, on the interview, which averaged was 40.5 points, for a total score
including the written portion of 58.5 points out of 100.
Prior to making any job offers, Dr. Arlani called Doug Durham’s and Ben Pucci’s
references and Mr. Antoniuk contacted Ann Reid’s references. Mr. Durham was offered
the position, but declined. Ann Reid and Ben Pucci accepted their offers and have been
in the position since their acceptance.
Union Argument
Union counsel submitted that the overriding principle applied in the selection of a
candidate in a job competition, is that seniority prevails, and it is only if the qualifications
and abilities of the junior employee prevail over that of the senior employee by a
substantial margin, can the junior employee be awarded the position. In support of this
proposition, Union counsel relied on the decision of OPSEU (Sauve) May 3, 1993 (Gray).
Union counsel further argued that this decision best sets out the criteria and case law as it
relates to job competitions. In particular, it reviews the criteria as set out in De Grandis
GSB 506/81 (Samuels) at page 21:
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The jurisdiction of this Board has established various criteria by which to judge a
selection process:
1. Candidates must be evaluated on all the relevant qualifications
for the job as set out in the Position Specification.
2. The various methods used to assess the candidates should
address these relevant qualifications insofar as possible. For
example, interview questions and evaluation forms should
cover all the qualifications.
3. Irrelevant factors should not be considered.
4. All the members of a selection committee should review the
personnel files of all the applicants.
5. The applicant’s supervisors should be asked for their
evaluations of the applications.
6. Information should be accumulated in a systematic way
concerning all the applicants.
Union’s counsel submitted that the procedure used in these competitions did not follow
these principles and therefore were fundamentally flawed.
In particular, Union counsel argued that:
a) the panel did not consider any factors outside the interview process, and failed to
give weight to outside experience. The grievor had substantial experience in the
required field;
b) the panel failed to consider any performance appraisals, or any of the personnel
files, contrary to the Ministry’s Directives and Guidelines; and
c) the panel failed to consider the grievor’s evaluation by his supervisor, which
indicated that the grievor had excellent knowledge of the Building Code, as
required for this position.
The Union submitted that as the competitions were conducted as a test rather than an
interview to assess one’s skills and ability, it was important to give importance to the
principles set out in the Sauve decision, which emphasized the importance in relying on
outside factors such as performance appraisals and reports from supervisors. The
Guidelines used by management point out their value as important sources of information
on a candidate’s qualifications, which can be followed up in the interview and in
reference checks. Union’s counsel argued that the failure to review the personnel files
and performance appraisals prior to the interviews was a flaw in the process. The
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Grievance Settlement Board has found competitions flawed, where they were not
assessed by all the members of the selection committee. Union’s counsel submitted the
failure of the selection panel to consider and give weight to the grievor’s previous job
experience and performance appraisals was a flaw in these competitions.
Union counsel also submitted that the evaluation of the candidates was done improperly
in that:
a) the Employer did not have a plan on how to evaluate each person in the
interviews. The interviewers did not know when they were allowed to prompt the
candidate and what was the result if the candidate was prompted. The result was
that prompting was applied inconsistently between the applicants. At times the
applicants were prompted and were not given points, and at times they were
prompted and points were taken away;
b) the interviewers did not know if the scoring of an answer was effected if a
candidate used the Code to respond to an answer. Sometimes points were given
for navigation through the Code, and at other points they were not;
c) no consideration was given to answers that fell outside the model answers created
by the panel. Mr. Tober who was on the second panel did not have the technical
expertise and therefore was not be in the position to award any points outside of
the model answer;
d) the candidates were not given the value of each question, and the value of the
components of each question, such as the value attributed to the number of
examples sought in some of the questions. The result was that the grievor was not
properly able to assess to what extent a question must be answered; and
e) there was a fundamental misunderstanding between the members of the selection
panel on the criteria and the process to be applied to the degree that Mr. Antoniuk
did not know the standard that was to be applied overall.
Union counsel submitted that the marking of the grievor’s interview was flawed and the
grievor deserved more points.
The Union submitted that the application of the Employer’s standards was flawed. While
the Employer has the right to establish the minimum standards, there was no evidence
that the standard set by the employer, either the 70% threshold overall or the 50%
required on the technical and communication aspects on the written assignment, was
necessary or reasonable.
Union’s counsel submitted, in addition to these flaws, each job competition had
additional flaws.
In Competition #1, the Employer failed to acknowledge the grievor’s application.
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The purpose of inserting the area of search was to advise potential candidates of their
requirements and whether they had the ability to apply. The limitations on the area of
search were not removed by the Assistant Deputy Minister until November 1999, well
after the three competitions were complete. The Employer interviewed and awarded the
position to Mr. Overbo, who lived in Sudbury at the time that the job offer was made.
Competition #1 was limited to applicants within commuting distance of Toronto.
Union’s counsel submitted that the Employer went outside the area of search and
breached its screening process. Therefore the Employer failed to follow its Directive on
the area of search, which was unfair to the candidates.
Union’s counsel also argued that had the Employer followed its Directive at D4.2.2 to
forward the job posting to the deployment unit, to determine first if there were any
surplus employees, it would have led the Employer to the grievor’s letter of November
25, 1996, to Carol Evans the Senior Human Resource Advisor, in which the grievor
specifically noted his surplus position and his application to the recently posted position
of Advisor, and his reference to his experience in the Building Code branches.
Union’s counsel argued that Henry Wain and Doug Overbo and the grievor had the same
position or classification from at least 1992 to 1996. Union’s counsel argued that the
grievor’s formal education and experience was better than that reflected in Doug
Overbo’s resume, which was recreated after the competition. Doug Overbo’s resume
indicated that he only had experience as a draftsman, while the grievor had practical
experience as an Architectural Technologist, a Plans Examiner and Roofing Specialist
which required compliance with the Code, the standards and bylaws. In addition, the
grievor had the same background as Plans Examiner as did Mr. Mondisor, whose
departure had created the vacancy. Therefore the grievor ought to have been granted an
interview, as were Henry Wain and Doug Overbo.
The Union submitted, although Dr. Arlani was concerned that the grievor’s Code
experience was not current, the Ministry Guidelines say to avoid recent experience unless
the position has changed radically. The grievor brought Code experience from his
position as an Architectural Technologist and as a Plans Examiner, and could easily have
brought himself up to date. This would not be significant, as Dr. Arlani testified that
anyone in the position would be heavily monitored for a period of one to four months.
Accordingly, the Union submitted that as the grievor was qualified to do the job, and was
relatively equal to Doug Overbo, on the basis of the grievor’s seniority, the grievor
should be put in the position of Building Code Advisor as of the day Doug Overbo
received the position. This competition should not be rerun as the failure to award the
grievor the position was due to the Employer’s error.
In Competition #2, the Union argued that, the grievor should have received the position
as the qualified person, and alternatively in an underfill capacity.
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The job posting of the competition was in violation of the Directives. The Directive
requires surplus employees to be considered before a decision is made on staffing. Dr.
Arlani was not advised by Mr. Tober until after the close of the competition, that the
selection committee should note any underfill employees.
Counsel submitted that the grievor was not given due consideration in this competition.
First, the panel did not comment on his qualifications at the screening process. Secondly,
the questionnaire containing Mr. Gryffyn’s scores did not contain any notes, which
thereby calls the seriousness of his consideration of the candidates into question. Thirdly,
as a result of the errors in marking the questions, Union’s counsel submitted that the
grievor had sufficient scores to award him the position. The Union was further deprived
of an opportunity to examine Mr. Tober.
Union’s counsel submitted that if the competition was too flawed and it was not possible
to award the grievor the competition, as the competition was a restricted competition, that
the competition be rerun.
Union’s counsel submitted that Competition #3 was tainted from the beginning when Dr.
Arlani initially decided that the panel did not need to interview the grievor. The Union
interpreted this decision to mean that the panel was relying on the past interview, which,
in the Employer’s view, was not sufficient to award the grievor the position. The
comments made on the scoring sheet supports the perception of the grievor that the
Employer was going through the motions and was not treating the grievor’s application
anew.
Union’s counsel argued again that the marking of the interview questions was flawed.
On the Union’s assessment of the scores on the interview alone, the grievor should be
ahead of the other candidates. Union counsel argued that on a proper assessment, the
grievor should have received 63 points, as compared to 68 for Ann Reid and 65 for Ben
Pucci. Therefore, Union counsel submitted that scores show that the grievor was
relatively equal to the other candidates and therefore should have been awarded the
position on the basis of the seniority criteria in the collective agreement, and as the only
internal candidate.
Union’s counsel also argued that the panel awarded the position to Ben Pucci, who did
not meet the Employer’s threshold of 50% on the technical aspects of the written portion,
when he scored 4 out of 10, which in the Union’s view, was generously awarded.
Nevertheless he received the position and has remained in the position. Ben Pucci’s
success underscores the unreasonable aspect of the minimum requirements.
The Union argued that as the Board has the jurisdiction to award the position, and has
before it evidence other than that which the selection committee reviewed, it is capable of
determining if the grievor had the qualifications and ability at the time. The Union again
relied on Sauve at pages 38/39, arguing that the grievor would be prejudiced by having
the same panel evaluate him, when the panel had eliminated him from the competition.
He was also prejudiced if the competition was to be rerun as Ben Pucci and Ann Reid the
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successful candidates would have gained experience and knowledge from working in the
position since the competition.
Union’s counsel submitted that if the Employer was wrong in either of the first two
competitions, the appropriate remedy was to place the grievor in the position and not
rerun the competition. Furthermore, as the third competition was not restricted to
Ontario Public Service Employees, it was not appropriate to rerun the competition.
Employer Argument
Employer’s counsel argued that as in OPSEU/Bent and The Ministry of Transportation
GSB #1733/86 (Fisher) in which the Board found a number of defects, including
improper scoring and a failure to do a reference check, it is not enough for the Union to
find defects, but the onus is on the Union to show, on the balance of probabilities, that
had the defects not occurred, the grievor was relatively equal to the other candidates.
Employer’s counsel submitted, that although there may have been some defects in these
competitions, the Union has been unable to prove on a balance of probabilities that had
the defects not occurred that the grievor was relatively equal to the successful candidates.
Employer’s counsel agreed that the Sauve case set out the criteria used by the Board in
the assessment of job competitions. However, Employer’s counsel argued that the
decision of Alam and The Ministry of Community and Social Services GSB #140/84
October 9, 1990 (Roberts) at page 29, emphasized that where there are flaws in a
competition, the competition has to be evaluated in a realistic fashion. Competitions do
not have to achieve perfection to pass the scrutiny of the Board. Despite serious flaws, a
competition may still be upheld. For instance, the Board in Alam referred at page 29 of
the decision to Re Simmonds and the Ministry of Government Services GSB #213/93
(1983) (McLaren) and Re Saras and the Ministry of Labour GSB #457/85 (Swan) where
the Board upheld job competitions where personnel files had not been considered,
supervisors not consulted, and where there had also been consensus scoring, which is not
an approved practice, and concluded that although these were flaws, they were not fatal
to the competition.
Employer’s counsel submitted that the job posting reflected the position, and the criteria
which Mr. Antoniuk used to create the screening sheet for the qualifications, was divided
into the four categories, i) building design and construction, ii) technical knowledge, iii)
knowledge of the building code, and iv) knowledge of building and standards, were
reasonable, and matched the qualifications for the position.
The questions in the interviews on all the competitions were designed to test the
knowledge of the candidates. Employer’s counsel submitted that it was appropriate for
the Employer to set the standard to be applied to the candidates seeking the position. The
Employer used a 70% standard overall, which as the standard used for all job
competitions of a technical nature. The standard was reasonable in light of the
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responsibility of the position, the expertise required of the position, the necessity to
respond to most inquiries within the day, and to be in a position which requires teaching
others. Employer’s counsel submitted that as there was no evidence that the 70%
standard was too high, or that candidates with less than 70% were capable of performing
the job, the standard was appropriate.
Employer’s counsel submitted that all the candidates were screened for their
qualifications in the same manner and against the same standard as in the first
competition. The selection committee was entitled to set the standard for the
competition, and they did so, using the same standard as in the first competition.
Employer’s counsel conceded that in Competition #1, the failure to acknowledge the
grievor’s application was a flaw, but submitted not one fatal to the competition.
Employer’s counsel argued that the issues in the Competition #1 are, whether the grievor
was improperly denied an interview, and whether the results were invalid as the
successful candidate, Doug Overbo, did not meet the criteria reflected in the area of
search.
Employer’s counsel submitted that if a candidate fails to provide sufficient information
on their resume, it is the candidate and not the Employer, who is to blame. The grievor
did not provide as much information on his resume as did the other candidates. The
Employer is not obliged to go outside the application and consider a candidate’s
personnel file at the interview stage.
Employer’s counsel submitted that in Doug Overbo’s resume, he had elaborated on the
tasks he had performed for the Ministry as an Architectural Technologist, and had
described specific jobs that he had done in the private and public sectors in his resume,
which indicated his level of expertise.
Employer’s counsel submitted that on the other hand, the grievor failed to provide
information in his resume to support his level of skills and ability. Mr. Antoniuk was not
convinced from the grievor’s resume that the grievor had knowledge of the Building
Code and knowledge of buildings and standards. He had testified that the grievor’s titles
of ‘Architectural Technologist’ and ‘Roofing Specialist’ did not convey the level of
knowledge the grievor had attained. The grievor’s resume showed that he had exposure
to building and roofing, but not knowledge of building standards. Similarly, although
there was reference to his position as Plans Examiner, this title did not confirm his
knowledge or show the level of review, which he performed when reviewing drawings.
It was not helpful that Mr. Mondisor had held the position of Plans Examiner before
becoming an underfill for the Building Code Advisor, as the Advisor position had
become more specialized since 1990, and the Plans Examiner position was no longer
sufficient to meet the qualifications. The grievor’s reference to his education at Ryerson
College showed that he had some exposure to the Code to 1979, but that there was
nothing in the resume to indicate current knowledge of the Code. The grievor’s resume
did not show current knowledge of the Code.
15
Employer’s counsel argued that even though the grievor and Henry Wain held the same
job from 1992, Henry Wain was given an interview as his resume showed that he had
given advice on the current Code and had participated in training, which was not apparent
from the grievor’s resume.
Employer’s counsel submitted that as in Borecki and The Ministry of Natural Resources
GSB #256/82 (Swinton), the Employer is not required to interview all the candidates,
even if all the candidates appear to be qualified. In that case, the Board held that where
there is a large pool of candidates, the Employer may screen the candidates, evaluate their
qualifications, and only interview the most qualified. Employer’s counsel submitted that
in this case, each candidate’s qualifications were reasonably evaluated. They were
evaluated on an individual basis by Mr. Antoniuk and Mr. Gryffyn on the basis of the
same recruiting worksheet, before discussing the results with Dr. Arlani. After the
evaluation the Employer was entitled to interview only those which it considered
qualified. As a result of these considerations, Employer’s counsel argued that the grievor
was properly categorized as marginally qualified and that the Employer was not required
to interview him for the position.
Employer’s counsel submitted that the geographic area of search did not make Doug
Overbo ineligible to apply. Employer’s counsel argued that unlike the specific
restrictions of “within 40 kilometers” or at a specific location, the designation of “within
commuting distance” is not an effective screening tool. Dr. Arlani had testified that this
description in the area of search was used to avoid the costs of relocation and moving.
The fact that Doug Overbo was screened in, and granted the position, were not flaws in
the process.
Employer’s counsel argued that in the event the Board found that the grievor was
improperly denied an interview, he was not relatively equal to the successful incumbent,
Doug Overbo. The grievor’s scores in the other two competitions that followed shortly
thereafter and were similar to the first are reasonable indicators of the grievor’s skills and
abilities. His scores were far below those of Doug Overbo. The grievor scored less than
50% in Competition #2 having received 50.75 points out of 110, and 58.5% on
Competition #3. These scores were not comparable to Doug Overbo’s who scored 81%
on the interviews and 41out 50 on the written portion, which gave an overall score of
81% to 82%.
Employer’s counsel argued that the grievor was not entitled to be assigned to the Advisor
position, on the basis of a surplus status as his position was in a different classification
from the Architectural Technologist, the position from which he was surplused. As the
grievor did not meet all these conditions, Article 20.5.1 was not applicable.
Employer’s counsel submitted that although the usual remedy in a job competition would
be to rerun the competition if the grievor was screened out improperly. It was not
necessary in this case as there are other indicators of his skills and abilities. The grievor
has been interviewed twice and has not been able to obtain the minimum score. He has
16
not shown that he was qualified for the position and therefore should not be awarded the
position.
Employer’s counsel argued that the Union was not able to show, on the balance of
probabilities that had the defects in the competition process not occurred, that the grievor
would have been relatively equal to the other candidates, and therefore would have been
entitled to the position as a result of his seniority. Even if the panel had spoken to the
grievor’s supervisor or had reviewed his personnel files, the results of their decision
would not have been different.
Employer’s counsel submitted that the Employer did not select any of the candidates in
Competition #2, for bona fide reasons. In OPSEU (Magliocco) and Ministry of
Correctional Services GSB #3213/93 (Finley) the Grievance Settlement Board
recognized that a competition can be cancelled if there are bona fide reasons for doing so.
As there were no candidates that fulfilled the criteria, it was appropriate and reasonable to
cancel the competition. Accordingly this grievance ought to be dismissed.
Employer’s counsel conceded that Dr. Arlani did not understand that the position was to
be filled by an underfill. She argued however, that filling the position with an underfill
was not relevant to this position. She argued that the decision to fill a position as an
underfill is based on two factors, whether there were qualified people to do the job and
whether there was sufficient developmental time to develop a staff member. At the time
of the second competition, the Branch was going through developmental and
restructuring changes, and there was a need for a person in the Advisor position who
could do the job without supervision. Employer counsel further argued that the posting
for the position did not include an advertisement for an underfill for the position and
therefore it should not be considered.
Employer counsel submitted that Competition #3 was not tainted as alleged by the Union.
She submitted that the grievor was treated fairly in the third competition. He was
interviewed and scored independently from the second competition.
Employer counsel reiterated the same comments and position as she did for the earlier
competitions, as it related to the qualifications, the appropriateness of the questions and
the difficulty with time management and the Employer’s general approach. With respect
to particular complaints by the Union:
a. Contrary to the Union’s position that prompting was applied inconsistently, there
were different prompts for different reasons, and the effect of the prompts were
seen in the scores. For example, if a candidate was off track when answering the
question and was prompted and then gets the right answer, the candidate was not
given full marks, as opposed to the situation where a candidate answered a
question correctly, but incompletely, was prompted and gets full marks for
answering completely.
17
b. Employer counsel submitted that not knowing the number of examples
required in any given question was not a flaw, but if it was a flaw, there
was any unfairness it was applied to all candidates equally. No one was
told how many examples were required, and if the candidate only gave
one example, and more were required the candidate was prompted for
more answers; and
c. Employer’s counsel submitted that although the Employer did not speak to
previous supervisors or review performance appraisals, the Grievance
Settlement Board is generally reluctant to interfere with competitions
where the scores were not material to the final result (Alam; Bent
decisions). Although the Employer did not rely on any personnel files, the
Union did not bring forward any material to support its position to show
that the grievor was qualified to perform the job.
Employer counsel submitted that in Competition #3, the Union did not dispute the
scoring of the written test. Although Ben Pucci did not score 50% on the written test, his
overall mark was 80.3%, which was well in excess of the 70% threshold. Dr. Arlani was
not concerned if the overall score was in excess of 70% as it indicated that Ben Pucci
would have sufficient skills to perform the job. In Ann Reid’s case, Ann Reid’s score
was 80.3%, and even with an adjustment for the response to question 7.
Employer counsel argued that if the Board was to find that the defects in the competitions
were such as to render any of the competitions to be fatally flawed, this Board is not in
the position to determine if the grievor was relatively equal to the successful candidate.
In support, she relied on Coulter/Charleau and Ministry of Correctional Services GSB
#1395/88, 1304/88 (Watters) in which the Board held that the defects that were found in
the competition made it impossible to determine the grievors’ qualifications and abilities
to do the job, and therefore in those circumstances, it would be improper to award the
position to one of the grievors. Employer counsel argued that if this Board were to find
that the flaws were so substantial that the competitions were flawed, the position is a
highly technical position and requires great knowledge of the Building Code Act and of
the Code, and therefore the competitions ought to be rerun.
Relevant Articles of the Collective Agreement
6.1 When a vacancy occurs in the Classified Service for a bargaining
unit position or a new classified position is created in the bargaining unit,
it shall be advertised for at least ten (10) working days prior to the
established closing date when advertised within a ministry, or it shall be
advertised for at least fifteen (15) working days prior to the established
closing date when advertised service-wide. All applications will be
acknowledged. Where practicable, notice of vacancies shall be posted on
bulletin boards.
18
6.3.1 In filling a vacancy, the Employer shall give primary
consideration to qualifications and ability to perform the required duties.
Where qualifications and ability are relatively equal, seniority shall be
the deciding factor.
20.5.1 An employee who has received notice of lay-off in accordance
with this article shall be assigned to a position that becomes vacant in his
or her ministry during his or her notice period provided that:
(a) the vacant position is in the same classification as his or her
position;
(b) the vacant position is within a forty (40) kilometre radius of
his or her headquarters; and
(c) he or she is minimally qualified to perform the job; this is
defined as “the ability to do the job at entry level”; and
(d) there is no other person qualified to perform the required
duties, who has a greater length of continuous service and
who is eligible for assignment to the vacancy pursuant to
Article 20.5 or Article 20.6 (Recall).
Decision
The Union has alleged that the Employer has violated article 6.3 of the collective
agreement by failing to award the grievor the position in each of the three job
competitions. The Union argued that the grievor, being relatively equal to the other
candidates, the grievor ought to have received the position as the most senior candidate.
As there are a myriad of intertwining issues that have been brought to arbitration, it is of
assistance to set out the basic issues and framework in which to consider the Union’s
claims.
The essence of the grievor’s claims as expressed by the Union are:
1. The grievor claims that he should have received the position from the first
competition as he was the senior candidate with the qualifications and abilities
who could perform the duties of the position. In Competition #1, he claims that
the Employer breached the collective agreement by not interviewing him and
awarding him the position on the basis of his qualifications and abilities.
2. In Competition #2, the grievor claims that the flaws in this competition prevented
the Employer from assessing his qualifications and finding that he was qualified
for the position.
3. In Competition #3, the grievor claims that there were flaws in the assessment
process which lead the Employer to wrongly conclude that his qualifications,
skills and abilities were not relatively equal to those of the successful candidates,
and therefore due to his seniority he should have been awarded the position.
19
With respect to Competition #1, the issues simply put are:
1. Did the panel wrongly assess the grievor’s resume and covering letter in
determining that he was marginally qualified and therefore not entitled to be
interviewed?
2. Was the successful candidate, Doug Overbo ineligible to be interviewed and
awarded the position as he lived outside the area of search set out in the job
posting?
3. If Doug Overbo was entitled to be considered for the position, were the grievor’s
qualifications and abilities relatively equal to Doug Overbo’s, in which case the
grievor was entitled to the position on the basis of his seniority.
The best evidence that was before the Board to determine the grievor’s qualifications
and abilities were the results of two subsequent competitions that he applied for
considered. As the Union challenged those competitions as not properly recognizing his
qualifications and abilities, the resolution of those challenges have to be first determined
before resolving the issues arising from Competition #1.
With respect to Competitions #2 and #3, the following issues must be resolved:
1. Was the assessment process flawed as alleged by the Union?
2. If so, did the flaws affect the outcome of the assessment? This
second question raises the following issues:
i. Were the flaws so significant that they tainted the whole
assessment process, such that the competition cannot be relied
upon as a valid basis for assessing the qualifications and abilities
of the candidates. If that were the case, what is the appropriate
remedy? Can a Board could make its own determination of the
qualifications and relative abilities of the candidates, which it has
the power to do, or should the competition have to be rerun,
because the nature of the flaws makes it impossible for the Board
to make a determination? Or
ii. Were the flaws not significant or could they could be corrected or
corrected to the degree in the review process that it remains
possible to determine the qualifications and relative abilities of the
candidates. If this is the case, and the Union is able to prove that
absent the flaws, or having corrected the flaws, the grievor has the
qualifications to perform the job, the grievor would be entitled to
the position as the senior candidate.
20
This is the framework which I believe is necessary to consider competitions #2 and #3.
The principles for resolving these grievances are based upon article 6.3 which sets out the
basis for selecting a candidate for a job posting. Pursuant to article 6.3, the Employer
must focus first on the qualifications and abilities of the candidates to perform the
required duties of the job, and if the Employer determines that the candidates are
relatively equal, the Employer must award the position to the most senior candidate.
The Board has consistently interpreted article 6.3 and its predecessor article 4.3, as
recognizing the priority of the senior candidate with the qualifications and abilities to do
the job, to the degree that “the appointment of the junior of two qualified applicants is
only appropriate if the qualifications and abilities of the appointee exceed those of the
senior applicant by a substantial and demonstrable margin” (Sauve at page 18).
Therefore, if the candidates are relatively equal, the Employer must select the senior
candidate. However, eliminating any issue of over-qualification for the position, which is
not relevant to this decision, if a junior person has demonstrably better abilities to
perform the required duties of the job and is identifiably superior to the other candidates,
the Employer is entitled to select that person over the senior employee.
The cases referred to by both counsel are not at odds, but work in harmony with each
other and articulate the criteria used by selection committees to consider applications, and
the standards applied in determining if there has been a breach of article 6.3 of the
collective agreement. The Sauve decision sets out some of the criteria that should be
applied by selection committees in making a fair and reasoned assessment of candidates,
when it quotes the De Grandis decision at page 21:
1. Candidates must be evaluated on all the relevant qualifications for the
job as set out in the Position Specification.
2. The various methods used to assess the candidates should address
these relevant qualifications insofar as possible. For example,
interview questions and evaluation forms should cover all the
qualifications.
3. Irrelevant factors should not be considered.
4. All the members of a selection committee should review the personnel
files of all the applicants.
5. The applicant’s supervisors should be asked for their evaluations of the
applications.
6. Information should be accumulated in a systematic way concerning all
the applicants.
21
The purpose of canvassing information on hand is to allow the selection panel to evaluate
the skills and abilities of the candidates in a broad sense and not to rely solely on a
performance in an interview.
An assessment of candidates is not an exact science. Notwithstanding the best intentions
of the selection committee, by its nature, there will likely be flaws in the assessment
process. Therefore as in the Alam decision, which recognizes that any job competition is
not perfect, the flaws that do occur in assessing the qualifications and abilities of the
candidates must be considered in the context of the whole competition to determine if
there has been a violation of the collective agreement, such that the senior candidate with
the qualifications and abilities was not selected.
As the Sauve decision holds, in following the Bent decision, the onus is on the Union to
establish on a balance of probabilities that had the defects in the job competition not
occurred, the grievor, being senior, was relatively equal to the other candidates.
The Board goes further in Sauve to consider what is the remedy if this onus is met, and
finds that the remedy is not limited to an order to rerun the competition. If the onus is
met, it provides the basis for directing the employee into the position. The Board found
further support for that premise in Regina v. Ontario Public Service Employees’ Union et
al. (1982), 35 O.R. (2d) 670, where the Ontario Divisional Court rejected the Employer’s
argument that the Board was limited to ordering a rerun of the competition. The
Divisional Court upheld the power of the Board to appoint a grievor to a position as a
remedy for a breach of article 4.3. The Board in the Sauve maintains, in order to restore
the injured party to the position he or she would have been in had the breach not
occurred, the Board must make its own assessment of the candidates’ qualifications and
abilities when the employer’s assessment has been shown to be defective.
Therefore in these grievances it is necessary to analyze the competitions, and to
determine if there are flaws, as alleged by the Union, and if so, if the flaws had not
occurred, was the grievor as the senior applicant, on the balance of probabilities qualified,
and where applicable, relatively equal to the other qualified candidates and therefore
entitled to the job.
COMPETITION #1
The Application Process
Grievor handed in his application and resume, and it was stamped received, on November
8, 1996. It was within the time required for consideration for the position. The grievor
did not receive a letter of acknowledgement, but only learned that it had been received by
Human Resources after Doug Overbo, Henry Wain and Albert Charrion had been
interviewed, and the position had been awarded to Doug Overbo.
22
The Employer is provided with both Directives and Guidelines to assist it in its
administration of the workplace. The Directives set out the requirements in procedure
and principles applied in the assessment and selection of candidates. The Directives
include all selection activities from the time a vacancy is identified to the making of a job
offer. They set out the development of the selection criteria, the choice of the area of
search, advertising methods, responsibilities of the selection committee, and the
screening and assessment of candidates including reference checking and competition
documentation.
The Directive at 4.2.3 requires that an acknowledgement letter be sent whenever
applications and resumes are received for a competition. This requirement is also set out
in article 6.1.1 of the collective agreement, which the Employer breached. Although this
is a flaw, as the grievor’s application was considered, this flaw is not fatal to the
competition.
The Screening of the Resumes and Covering Letters
The Borecki decision points out that where there is a large pool of candidates, for
purposes of cost and efficiency it is not necessary to interview all of the candidates. They
can be ranked in order that only the more qualified candidates are interviewed. This
principle would be equally applicable in a small pool, if the situation is as stated at page
20 of the Sauve decision:
… The award in Bent appears to say that the employer need not
interview an applicant who does have all the minimum essential
qualifications and abilities, if it is apparent from the applicants that
overall he or she is demonstrably less qualified and able than other
applicants. Together these awards support the proposition that the
employer need not interview someone who would not be “in the
running” even if everything claimed in his or her job application
were true.
Therefore, if there are qualified candidates, the Employer may look among these
candidates in a bona fide manner, for the more qualified candidates to assess further,
always being mindful that it has the obligation to select the senior candidate if the
candidates appear to be relatively equal. Therefore as it applies to this case, the
Employer was entitled to rank the resumes in terms of qualified, marginally qualified and
not qualified, and could choose to interview only those who appeared to be qualified.
Eligibility of Doug Overbo to be Interviewed
The Union submitted that the Employer ought not to have interviewed and awarded Doug
Overbo the position as he lived outside the area of search as stated in the job posting.
23
The Directives at D.4.2.2 require that the area of search be included in all job postings,
and that it set out the geographic limitations where applicable, for example within 40
kilometres. This job posting described the area of search as “within commuting distance
of Toronto”. Dr. Arlani testified that it was his belief, that to restrict the job search as
posted, was to ensure that the Ministry would not be liable for any commuting or
relocation expenses. Doug Overbo agreed that the Ministry would not be responsible for
his expenses and no expenses were paid to him.
Dr. Arlani’s interpretation of the area of search was supported by the Guidelines. The
area of search was seen in the context of relocation expenses. As the Guidelines at
G.2.4.7, provide entitlement to OPS employees for reimbursement of expenses if they
relocate to take a new job, the Guidelines focus on the implications relating to the
relocation expenses when the area of search is defined broadly. The Guidelines point out
that “within 40 kilometres” avoids paying relocation expenses, and rules out current
employees who live outside the perimeter. This was the limitation that was removed by
letter of November 26, 1999 as referred to by the Union, not the broader area of search
expressed in this job posting. On the other hand, the Guidelines point out the difficulty
with defining the area of search broadly, as “within commuting distance”, as ambiguous,
difficult to apply consistently, and open to the risk of attracting relocation expenses. The
Guidelines recognize that it is not very effective as a screening mechanism, although the
phrasing may discourage some potential applicants who do not want to commute.
Therefore, the area of search from both the management’s and the employee’s
perspective sets out the area that management is focusing upon in searching for, and
selecting the appropriate candidate. As relocation of employees can have funding
implications, it allows the employee to ascertain whether such funding can be expected.
However, although the posting indicates the area of search, it does not prohibit an
employee outside that area of search competing, if that employee is prepared to accept
the Employer’s limitation on funding. Accordingly, although Doug Overbo came from
Sudbury which was clearly outside commuting distance from Toronto, as he was
prepared to be at work without any financial burden on the Employer he was not
precluded from applying for and receiving the position.
The Entitlement of the Grievor to be Interviewed
The next consideration is whether the grievor’s application, which was composed of his
resume and covering letter, conveyed sufficient information for the panelists to determine
that he was one of the qualified candidates and therefore entitled to be interviewed.
The fundamental reason for the grievor being considered marginally qualified and
ineligible for the interview was that both Mr. Gryffyn and Mr. Antoniuk believed he did
not have current knowledge of the Code and of building standards. Dr. Arlani shared
their view.
24
The issue of current Code knowledge was important to the panel as the Code is revised
extensively every five years, and the position requires the Advisor to advise others on its
interpretation.
Although the grievor’s covering letter was not as explicit or as detailed as the other
candidates, it stated he had extensive knowledge of the Code and worked with the Code
on a daily basis. It was buttressed by his reference to his previous four years work as an
Architectural Technologist from 1992 to 1996, where he highlighted that he reviewed and
examined working drawings to Code and Ministry design standards, and had prepared
and reviewed remedial projects for non-profit and Housing Authority building retrofits.
This experience was preceded by his years as a Plans Examiner from 1975 to 1983,
where he also reviewed and examined working drawings to Building Code and Ministry
design standards.
Although the Employer took the position that the grievor’s knowledge and experience
with the Code was not current, by necessity to perform the work outlined in his resume,
he would have had to have some knowledge to the date of the competition. Although at
the time he was surplused in 1990 he worked extensively under the 1990 Code,
nevertheless he had current working Code experience at the time of the posting, and
therefore would have to have had to knowledge of the Code as it was constituted at the
time.
Further, as he was an Architectural Technologist and was involved with remedial and
upgrading of buildings to standard, he would have had to have knowledge of building
materials and standards, far beyond roofing materials, as the Employer contended.
If there was any doubt that the grievor did not have had knowledge and experience with
the Code and with building standards and materials, the Position Specification for the
Architectural Technologist position, was a resource readily available to the Employer.
The Position Specification of the Architectural Technologist supports a basis for the four
criteria chosen by Mr. Antoniuk for screening and directly relates to the areas, in issue for
the panel. The Skills and Knowledge require an “ability to evaluate building problems
and recommend appropriate solutions. Thorough knowledge of building codes, standards
and by-laws.” This basic knowledge is the link between the two positions. The
difference between the Architectural Technologists and the Advisor positions is that the
Architectural Technologist uses the Code to deal with architectural design, upgrading and
remedial construction, and delivers Ministry programs on public housing. The Advisor
position is focused more on individual issues and looks at Code issues as questioned by
municipalities or a building commissions and individuals. Although the applications of
the skills and knowledge of the Architectural Technologist would vary depending upon
the demands of each particular job, the overall skills and knowledge for that position
would be common and must be deemed to be within the knowledge of the Employer.
Therefore, I find that Mr. Gryffyn incorrectly assessed the grievor on his resume, when
Mr. Gryffyn marked “no” to the grievor’s knowledge of the Code, and questioned his
knowledge of material and building standards, and when Mr. Antoniuk’s questioned both
25
of these categories, and then considered the grievor marginally qualified and not eligible
for an interview.
Furthermore, the Employer did not assess the information in the grievor’s application on
the same basis as the other candidates. Both Christine Mak and Michael Ng were
interviewed, even though one assessor marked them has having no knowledge in building
design and standards in the screening process. It was inconsistent to interview candidates
who had ‘no knowledge’ in an important area, while eliminating a candidate from the
interview process where the grievor’s experience was questioned, and could have been
clarified in the interview. The grievor was also treated differently from Henry Wain and
Albert Charrion, whose background as Architectural Technologists was considered
sufficient grounding for an interview.
The grievor’s career pattern also bore a similarity similar to that of Mr. Mondisor’s, the
person he was replacing. Although Mr. Mondisor had specialized training as an underfill
to the Advisor position he had also been a Plans Examiner and had worked with the
grievor in his capacity as a Plans Examiner, on a complex project at 555 The Esplanade,
that involved three layers of underground parking, a high rise, medium town houses with
commercial and office buildings at grade, and an inner court.
In summary, although the Employer has the right to set reasonable criteria for
interviewing candidates, on their own criteria, it was not reasonable to eliminate the
grievor from the qualified pool. The grievor’s resume and covering letter met the basic
criteria established by the panel. On its face, the grievor’s resume and covering letter
indicated that he had the qualifications for the position. Whether his depth of knowledge
was sufficient for the position was a matter for an interview. Any concerns about the
knowledge of the building materials, or knowledge of the Code could be canvassed in the
interview process.
The Right to the Position
Although the grievor’s background as a Plans Examiner, a Roofing Specialist and then as
an Architectural Technologist provided him with the background that met the criteria for
an interview for the position, it is still insufficient in itself to award him the position on
the basis of his seniority. The onus remains on the Union to show that had the grievor
been interviewed, he was relatively equal to the other candidates, and had the
qualifications and abilities to perform the job.
The Standard Required for the Position
Article 6.3 states that “in filling a vacancy, the Employer shall give primary consideration
to qualifications and ability to perform the required duties.” In exercising that
prerogative, the Employer has the right to set a reasonable standard for the candidates to
meet in order to fill the position with the person who meets the job’s requirements. In
this case the Employer set the standard in all three competitions to be an overall score of
26
70% score on the interview and written questions, and 50% on each of the technical and
communication aspects of the written answers.
Contrary to the Union’s position that there was no evidence that this standard was
reasonable, Dr. Arlani testified that this standard was used in his area when assessing and
testing candidates on courses. Considering the public, ministries, and various persons
with expertise, seek the opinion of the Advisor on the interpretation and application of
the Code, and, the Advisor is also involved in developing courses and training others in
its application, a 70% standard overall, and a 50% in each of the technical and
communication aspects is supported, is reasonable, and is within the Employer’s rights
under Article 6.3.
The Basis for The Grievor’s Qualifications and Abilities
The only information that the Union was able to provide relative to the time in question,
to support the grievor’s position that he had the necessary qualifications and abilities, was
the information provided in the grievor’s resume and covering letter and his performance
appraisal contained in his Employee Portfolio. Although these documents indicate that
he has sufficient skills and knowledge to be considered for the position, and his
performance appraisal stated that he had excellent knowledge of the Code, that does not
mean in the context of the job competition that he would necessarily have met the
standards set by the Employer and have been the successful candidate in the competition
had he been interviewed.
The grievor did apply for the same position on two other subsequent occasions and was
interviewed on both occasions. As the position was the same, and the nature of the
questions related to the skills and abilities required to perform the same job as the subject
of the first competition, they provide a basis upon which to consider whether the grievor
would have been qualified for the position and relatively equal to Doug Overbo who had
received the job. In the second competition, the grievor received 50.75 out of 110 points,
which is less than 50% for the overall score for the interview and written question, and
58.5% on the third competition. These scores do not suggest that he was as qualified as
Doug Overbo. The grievor’s scores were below the standard that the Employer had set as
a threshold for the position. Recognizing that Doug Overbo was tested on different
questions, nevertheless, Doug Overbo’s scores were substantially superior to the
grievor’s scores on the second and third competition, as his overall score was between
81% to 82%. Therefore, it rests on the Union to show that the Union that the second and
third competition was either so flawed that it could not measure the grievor’s skills and
abilities, in which case it is up to this Board to determine if those flaws were corrected,
that the grievor’s qualifications and abilities were relatively equal to Doug Overbo.
Therefore the answer to this question can only come after a consideration of the other two
competitions.
Issues Relating to the Review of Competitions #2 and #3
27
In argument, Employer counsel submitted, relying on the Bent decision where the Union
challenged the difficulties of the questions, that it was not the duty of the Board to
meticulously review the questions and answers.
In many cases where a job competition is questioned it is not necessary to review the
questions and answers on an individual basis to determine whether the flaws, or lack
thereof, in a competition created a breach of article 6.3. However, in this case, the only
way that the Union could demonstrate that the grievor was relatively equal to the other
candidates, was to review each question and its scoring to demonstrate that there were
flaws within the interview itself. Therefore to answer the issues brought before this
Board, it is necessary to evaluate the interview questions and the marking of the
questions. It was also possible in this arbitration to examine the questions and answers in
great detail, as unlike many competitions where there is a lack of evidence or where there
are poor memories, in this competition the documents were complete, other than as noted,
and the memories of the witnesses were unfaltering and complete.
In addition, as the Board has the power to place a grievor in the position, if it determines
article 6.3 was violated, a review of the questions provides important information on the
qualifications and abilities of the grievor. Therefore, I have reviewed the questions on an
individual basis, to determine if there were flaws within the interview itself.
There is a further issue, however, to be considered before assessing the responses in the
interviews and their marking, and that is the weight of Mr. Tober’s and Mr. Gryffyn’s
questionnaires. Mr. Tober’s questionnaire was annotated, but Mr. Gryffyn’s did not
provide any basis for the scores which he gave. Neither Mr. Tober nor Mr. Gryffyn were
called as a witness and accordingly their views and their approaches were not subjected
to cross-examination. As a result, I treated any evidence relating to their involvement in
the competition as neutral. There was no basis to treat their evidence in any other
fashion.
The Structure of the Evaluation
In the posting, the criteria for determining who should receive the interview, and the
questions in the interviews, must reflect the skill set and the requirements of the position
as set out in the Job Specification, and the candidates must be evaluated against these
criteria. Dr. Arlani clearly identified and related the elements reflected in the Job Posting
to those set out in the Job Specification. Similarly the four criteria chosen by Mr.
Antoniuk for assessing the resumes were directly related to the Job Posting and the Job
Specification. The questions chosen for the interview were based upon technical
requirements for the position, and the written portion was taken from inquiries made of
Advisors in the performance of their jobs. The Union did not dispute the criteria for
assessing the applications and resumes or the questions used to assess the candidates.
Therefore the framework for assessing the candidates on their resumes and on their
responses to the questions in the interviews was an appropriately related to the job
position.
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The Interviews
Once the candidate has passed the first hurdle of receiving an interview, one of the best
indicators, but not, the sole indicator, of the comparative abilities of the candidates, is an
assessment of the candidates’ abilities to answer questions that reflect the skills and
abilities required for the position. A well-run set of interviews should provide a good
basis for comparison.
The Union challenged the methodology used by the Board in several respects. It
challenged the selection of Mr. Tober, who was from Human Resources and did not have
the technical background of the other interviewers, the reliance on model answers, the
lack of clarity given to the panel with respect to the use of prompts to the candidate, and
the effects of prompts on their scores, and similarly the lack of understanding by the
panelists concerning the candidates’ use of the Code in responding to questions and its
effect on the candidates scores.
The use of model answers provided a consistent basis of analysis for the interviewers to
assess the answers given. It allowed each of the interviewers to listen to the answers
given and look for the same key aspects being sought from the candidate. Having
complete model answers also allowed an interviewer, such as Mr. Tober, who did not
have the technical expertise in the area, to determine if the candidate has in fact answered
the question. The limitation on the use of model answers occurs only if a candidate
provides an answer, which although correct, was not included among the model answers.
However, the ability of this panel to discuss any question after the interview, and yet
reach an independent score, counterweighs this weakness.
Although model answers create a backdrop for objective marking, there is often an
element of subjectivity in assessing how a candidate answers the question, how complete
the candidates’ answers are, and how that candidate’s answers compares with other
candidates’ answers. The system used in this competition allowed each panelist to make
his own assessment, and the discussion that followed, allowed the panelists to consider
any major oversight, but retain an independent assessment. The process of making
individual assessments and then averaging the scores, takes the variations in the
perceptions by the panelists of the various candidates, and is a fair and reasonable method
of scoring. The system which the panelists used was open and consistent with the
approach recommended in the Bent decision which said:
Therefore this Board would envisage a free and lively discussion
among the selection committee members before individual scoring
was exercised but ultimately, the member must score the candidate
as he deems fit and not so as to please the other members of the
selection committee. If this open approach is taken it would allow
the less technically competition member of the selection committee
to hear the view of his colleagues but still exercise his own
29
judgment when it comes to scoring. Obviously, when a
comparison is made between the scores of individual claimants it is
appropriate and indeed proper to average the scores of the selection
committee so that a proper comparison can be made.
Therefore the inclusion of Mr. Tober in the panel was not a flaw as suggested by the
Union, as his different background and any different approach he may have taken, was
taken into account when his scores were averaged with the other panelists. Similarly,
while the Union submitted that it was a flaw in the competition for Dr. Arlani to give
points for navigating the Code, and Mr. Antoniuk not, averaging the scores would take
the different approaches into account, as long as the approach by each panelist in
evaluating a candidate was applied consistently among all the candidates.
As the questions properly reflected the responsibilities and duties of the job, the average
of the scores after an independent assessment was made of the answers was a fair method
of reflecting different perceptions. Thus, the main issue in reviewing the answers to the
questions posed in the interviews is whether the marking of an applicant’s responses by
the panelist was appropriate in the circumstances.
Competition #2 Interviews
As mentioned in the facts, in this competition, Mr. Antoniuk and Mr. Gryffyn did the
initial screening of the applications and then met to discuss them. Only Bill Hamilton
was considered qualified. Although four candidates were selected for an interview,
Shane Stein withdrew, with the result that the grievor, Gallina Platus and Bill Hamilton
were the only applicants interviewed.
Dr. Arlani testified that the questions used in the interview were designed to reflect the
job, in that 80% of the job should be able to be done without research. Team work
represented only approximately 10% of the work. There were 16 questions designed to
address assessment, training knowledge, analytical skills and Code interpretation. 70%
of the questions were technical and 30% were designed to test communication skills and
broader knowledge of the industry. The interview also included a written component in
which the candidate was to give an opinion on a question which was taken from one of
the questions asked of the Ministry. Mr. Antoniuk was to test the grammatical abilities in
the written portion and Mr. Gryffyn was to mark for technical correctness.
The applicants were told that they should allow for about two hours for the interview,
which would include an oral portion that would take about an hour to an hour and a half
and a written portion that would take from a half hour to an hour. They were told that
they had the use of the Code for their answers in both segments. As mentioned earlier I
am of the view that there are no flaws in the structure of the interview.
The questions in Competition 2 are as follows:
30
1. How does your past experience qualify you for the job?
This question is to be read with question 16 which asks:
What other information about your abilities or knowledge can you give to
assist us in determining your suitability for the position?
The score received for this question was based upon the answer to this question
and to question 16, which was created to allow the candidates to emphasize any
uncovered area or background. As the scoring of questions 1 and 16 are tied
together, the final assessment of this question will be dealt with in question 16.
The grievor reviewed the information he had provided on his resume, pointing to
his 24 years in the public service as a Roofing Specialist, Plans Examiner and
Architectural Technologist. Dr. Arlani gave the grievor 7 points out of 11 on his
background information, but did not give a higher score, as he was concerned
with the grievor’s knowledge on the updated Building Code. The grievor agreed
that he did not have as much experience with the updated Code, since he was
surplused in 1990, however, as expressed earlier, that did not mean that he had no
experience with the current Code.
The grievor’s covering letter stated that he had extensive work experience with
the Code and his resume showed that he worked with the Code up to making his
application for the position. His application stated that he had reviewed and
examined working drawings to Code and Ministry design standards, and that he
prepared and reviewed remedial projects for Non-Profit and Housing Authority
building retrofits. These were noted by Dr. Arlani in his answer to question 1.
Although much of his background was focused on previous Codes, of necessity,
in order to perform his job as an Architectural Technologist, the grievor would
have had to have current knowledge of the Code.
Therefore the grievor’s resume, and covering letter show that he had current
knowledge of the Code and he should have been given credit for it.
Mr. Antoniuk in general was not as generous with his scores as was Dr. Arlani.
Mr. Antoniuk had low scores for all three candidates for this question, 5 for Bill
Hamilton, 4 for Gallina Platus, and 3 for the grievor. Mr. Antoniuk only gave 3
points to the grievor in response to this question and question 16, as he also
believed that the grievor was lacking in current Code experience. He was of the
view that the other candidates were more closely matched for the job. Although
the grievor’s experience had not changed by the third competition, Mr. Antoniuk
gave him 7 points for his response in that competition, on the basis that the
grievor gave a more detailed view of his background.
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There is an onus on the candidate to provide as much relevant information on his
resume and covering letter, and in response to questions such as questions 1 and
16, to allow the interviewer to assess the qualifications and abilities of the
applicant. The grievor was not as detailed in his application in the second
competition and did not provide as much information as did the other candidates.
In the third competition, the grievor gave more information on his experience as a
construction manager of 189 residential and commercial units for Bramalea,
which in Mr. Antoniuk’s view demonstrated that he knew how buildings were put
together, had experience updating standards for the Ministry, and had significant
experience in roofing. These experiences demonstrated to Mr. Antoniuk that the
grievor had the ability to analyze and develop opinions for the Ministry when
required. He also felt that grievor’s courses in public speaking and his prior
presentation of seminars was important in demonstrating his suitability for the job
as Advisor. Although the information given by the grievor was more detailed in
the third competition than in the second competition, there was reference to his
experience in presenting seminars and programs for staff and local housing
authorities and reference to his involvement in the Bramalea project, which had
impressed Mr. Antoniuk.
Had the panel looked at the grievor’s personnel file, as they are directed by the
Directives, they would have found that knowledge of the 1990 Code was
supported by his performance appraisal. Mr. Antoniuk reluctantly conceded that
this information would have had a positive impact upon him. The grievor’s
supervisor, Larry Hom, stated in the grievor’s performance appraisal in 1992, that
the grievor had “an expert knowledge of OBC, published program guidelines and
construction methodology. A realistic, practical approach is a particular strength.
Employee has resolved various difficult technical issues (ie. insulation/vapour/air
barrier systems) and has demonstrated expertise where consulting architects and
municipalities have benefited from his ability to identify and solve problems.”
Although this performance appraisal was done prior to the enactment of the Code
in effect at the time of the competition, it indicates the grievor had the skills and
knowledge which could no doubt be updated with a period of orientation.
The grievor’s resume and covering letter, which was supported by the information
that he gave at the interview, demonstrated that he had some current Code
experience even though he conceded he had worked more with previous Codes.
Mr. Antoniuk had overlooked this experience.
2. The Building Code Act requires that a permit must be issued if, among other
things, the work will not contravene the Building Code and other applicable
law. What is meant by applicable law?
The panel was testing the candidate’s knowledge of the Building Code Act, and
was looking for a definition of applicable law and for some examples.
32
The grievor was not able to define what was meant by applicable law, but he was
able, after looking though the Code, to give an example of ‘building permits’ and
then he suggested ‘municipal by-laws’. Dr. Arlani gave the grievor 1 point for
giving a correct answer, ‘municipal by-laws’ although he did not believe that the
basis for the grievor’s answer was correct. Mr. Antoniuk gave him no points, as
in his view, the answer was wrong.
The Union submitted that the grievor should have been given credit for both
answers and should have received 2.5 points out of 5 from both Dr. Arlani and
Mr. Antoniuk. The Union submitted that this question was one which showed an
inconsistent treatment in navigating the Code as the grievor was not given credit
for navigating the Code by both panelists.
The question on its face called for a definition or an explanation of applicable
law. Bill Hamilton received half marks for being half right, after giving a
definition and referring to some examples. Given the incompleteness of the
grievor’s answer and his lack of understanding as reflected in his answer, and the
relationship of his answer to the more complete answer of Bill Hamilton, there is
no basis to change Dr. Arlani’s score which gave the grievor partial credit for his
answer. However, as Mr. Antoniuk did not credit the grievor with ‘municipal by-
law’, which broadly interpreted, is an example of applicable law, Mr. Antoniuk’s
should have acknowledged and given him a point for that answer.
Dr. Arlani and Mr. Antoniuk did treat navigating the Code differently. Dr. Arlani
credited the grievor with looking at the Code which led to an answer which he
considered correct, while Mr. Antoniuk did not give him any credit for looking at
the Code. Although there was a difference in treatment, it was not one which was
part of the model answer, but one which was reflective of the different approaches
of the assessors. As a result, the difference in approaches would be taken into
account in the averaging of the scores and is not a flaw.
The Union also submitted that the process was defective, as the candidates were
not told how many examples were being sought. If there were a relationship
between the number of examples required and the mark given, it would be a valid
argument. However, where the answer is incomplete due to a lack of
understanding, advising the grievor that more examples were required does not
assist the grievor.
3. If a building inspector observes that a building is being built without a
permit, what can the inspector do?
The question was designed to evaluate the candidate’s knowledge of the Building
Code Act, specifically looking at the role of a building inspector when he
observes that a building is being constructed without a permit.
33
The grievor received 1 point from Arlani and no points from Mr. Antoniuk for his
answer.
The Union submitted that answers outside the model answer should be credited to
the candidate, which in this case was “to obtain a search warrant”.
This question does not require the candidate to answer what an inspector would
do on a step by step process. “To obtain a search warrant” was not what an
inspector would customarily do, in any event. It would not apply unless the
inspector had spoken to the owner/contractor and the inspector was not allowed to
go on the property. Therefore the grievor’s answer would only be correct if it was
given in context or showed an understanding of the role of the inspector. As none
of this information was provided by the grievor, to show that he understood the
role of the inspector. Furthermore, comparatively Bill Hamilton gave a more
complete answer and received 2 out of 5 points. Therefore there is no error in the
scoring of the grievor’s answer in this regard.
The Union claimed that the model answer was confusing, as the question referred
to the role of an ‘inspector’, and the model answer included as a course of action
that of ‘obtaining a stop work order’, that would be taken by a ‘Building Code
Official’. The question was not confusing. Even though the answer did not apply
to the function of the inspector, both Dr. Arlani and Mr. Antoniuk, considered
‘obtaining a stop work order’ as a correct answer. As Dr. Arlani gave the grievor
credit for this answer, but Mr. Antoniuk did not at the interview, even though he
admitted in his testimony that it was a correct answer, Mr. Antoniuk’s score
should be amended to 1.
4. You receive a telephone call from a building owner who claims that the
building department refuses to issue a building permit for alterations to his
building in order to comply with an Order under the Fire Protection and
Prevention Act because the use of building does not comply with the Zoning by-
laws. What advice would you offer to the building owner?
This question is looking at the knowledge of the Code and the exemption that it
gives to allow a Chief Building Code Official to issue a conditional permit. The
model answer was that the “Chief Building Official may issue a conditional
permit under Sentence 2.4.3.(3) of the Building Code to permit compliance with
the Order. The permit should indicate the conditional nature.”
The grievor received 2 points out of 5 from both Dr. Arlani and Mr. Antoniuk.
The Union claimed that he ought to have received 5 points. The Union submitted
that the grievor’s answers ‘to go to the Committee of Adjustment or for rezoning
and to go to the city council’ were correct. In the Union’s view, he should also be
given full credits for giving a correct answer after receiving a prompt.
34
Neither Bill Hamilton nor the grievor received credit for answering that the
Advisor should have advised going to the Committee of Adjustment, as it was not
considered a correct answer. In Dr. Arlani’s view, to go to the Committee of
Adjustment did not give him credit for that answer, because it is necessary to go
to the Committee of Adjustment in all zoning issues, and further, if that was done,
it would leave the building in an unsafe condition for a longer period of time. In
addition, the grievor missed the fire safety issues. Mr. Antoniuk did accept that
going to the Committee of Adjustment was as the ultimate step in the process.
The grievor also suggested he should get credit for advising to go to the city
councilor. However, that response is similar in nature as advising a person to go
the Committee of Adjustment and one which the panel was not prepared to accept
as the answer was general in nature and was not related to procedures under the
Code. The grievor’s answer was not within the scope of the answer required.
As the grievor’s answer was not directed to the area which the panel saw as
answering the question, he was prompted by a rephrasing of the question to focus
him on whether the Code permitted the Chief Building Official to issue a permit
where there was a zoning violation. Peter then responded that if it was minor, the
Chief Building Official could issue a conditional permit. After the prompt he was
able to give an answer that was correct.
The material defect however in the scoring of this answer relates to the treatment
of the question after a prompt is given. The grievor was prompted when the
answer he gave was not wrong, but not on point. The prompt served to clarify the
question. Upon clarification the grievor was able to answer the question correctly
and therefore should have been given full credit for his response and should have
received 5 points. A further flaw to the process, affected Bill Hamilton’s score, as
he was not afforded the same opportunity to obtain full credit.
5. It is unnecessary to go into this question, as the grievor was given full
marks for his response.
6. You receive a call from a plans examiner who needs advice on whether or
not the actual percentage of glazed areas in the exposing building face of a
house can be double if wired glass in steel frames or glass block was used. What
would your opinion be?
This question was designed to determine if a person was familiar with glazed
areas in houses, which is governed by Part 9 of the Code, not with the exceptional
cases of houses in excess of 6,000 square feet, which fall under Part 3. The
answer which the panel was seeking, was that the actual percentage of glazed
areas allowed in an exposing building face of a house is not permitted to be
doubled as in the case of unprotected openings.
35
The grievor did not look at Part 9. He checked Part 3 of the Code and concluded
that the area could be doubled. Dr. Arlani did not give him any points as he
focused on the inability to use wired glass in windows of less than 1.2 metres, and
he did not answer the question. The grievor did not receive any points from Dr.
Arlani for navigating the Code, as he went to the wrong part of the Code. The
grievor went to Part 3 which applies only to a very small percentage of houses,
less than 1% of houses, the mansions, as suggested by Mr. Antoniuk.
Mr. Antoniuk found that the grievor did not answer the question, but he gave him
1 point for stating the correct use of wired glass in windows less than 1.2 metres.
Bill Hamilton received no points for coming to the conclusion that the area could
be doubled.
The Union challenged both the correctness of the model answer and the scoring of
the question and was seeking 5 marks for his answer. The grievor had submitted
the same question to the National Research Council, Institute for the Research in
Construction, for its response under the National Building Code and had obtained
an answer consistent with his. The Union submitted that as the National Research
Council supported the grievor’s answer, the grievor should be given full credit for
his answer.
I do not agree with the Union’s position as to the correct answer to this question.
The grievor specifically directed his question to the application of the National
Building Code and not the Ontario Building Code, and the Institute confirmed
that point of reference. In addition, the letter noted that “the Ontario Building
Code is at variance with its National Counterpart and model in numerous
instances and this may lead to an interpretation philosophy which may be
different from the opinions that Canadian Codes Centre staff may express…”. The
Employer explained that this is one area in which the philosophy and applications
differed in the Ontario Code, with the result that the area could not be doubled.
The Ontario Building Code has two concepts, that of unprotected openings, and
glazed areas. Dr. Arlani explained that under the Ontario Building Code, glazed
areas are unprotected openings, but unprotected openings are not necessarily
glazed areas. The concept of glazed areas in houses, the subject matter of this
question, is centered in part 9. Glazed areas, as dealt with in Table 9.10.14.1. is
an adjunct to unprotected openings referred to in section 9.10.14.1. Glazed areas
are only dealt with in Part 3 if they are found in the category of a large building,
which includes a house greater than 6,000 square feet and where there is an
unprotected opening that is glazed and therefore is governed by its own provision,
3.2.3.11. It also makes a distinction between houses greater than and less than
6,000 square feet.
Mr. Antoniuk also pointed out that the National Code focuses on unprotected
openings rather than glazed areas, which are dealt with under Part 9. As a result
36
of these factors, the opinion of the National Research Council is not relevant to
this competition.
The grievor’s s answer was not correct as it does not relate to the vast majority of
houses. Although the grievor’s answer is not incorrect, as it relates to unprotected
openings in large houses, which are glazed, his response did not indicate he was
giving his answer in the case of very large houses, as opposed to the normal size
house, which the question is implicitly calling for. If the question was looking for
an exceptional situation, or alternatively if the candidate is responding to an
exceptional situation, the exception should be stated. Therefore, if the grievor
knew that he was speaking about the exceptional or extraordinary situation, he
ought to have placed his answer in that context. Without any context, his answer
does not indicate to the panelists that he knew the answer, and the response does
not answer the question. As Dr. Arlani’s testimony points out, the grievor’s
answer did not show an understanding of the concepts of glazed openings in a
house versus unprotected openings.
Although the grievor navigated through the Code, he did not begin or end in the
right section and therefore in the circumstances, Dr. Arlani’s assessment was not
shown to be incorrect. As Mr. Antoniuk has credited him with an answer on the
limiting area, which though correct, is not relevant, there should be no changes
made to his score either.
7. You receive a letter from an MPP who claims that one of his/her
constituents is complaining that she has a product that she feels exceeds the
requirements of the Building Code but building officials around the province
would not accept its use. The reason she claims for the refusal is that her product
is tested to a standard other than that specified in the Building Code. What
response would you give to the MPP?
The purpose of this question, was to see how a person would deal with new
technologies which are not dealt with by the Code, as the Code is static piece of
legislation, until it goes through the amendment procedure. The panel said the
question had both a technical element and a communications element.
The grievor received 2 points for his answer and Bill Hamilton 3 points. The
Union submitted that the grievor should have received a higher score than Bill
Hamilton as he had two correct points, “to go to the MPP”, and “to go to the
Building Materials and Evaluation Commission”, and he received no points for
communication. The Employer submitted that the scores should not be changed
as the grievor gave an answer that was correct, but without prompting, qualified
the answer, which made it incorrect.
The answer to this question did not indicate that the panel was looking for an
ability to communicate, and it was not marked as such.
37
However, the grievor was not treated in the same way as Bill Hamilton, by either
Dr. Arlani or Mr. Antoniuk. Both Bill Hamilton and the grievor gave an answer
which was not in the model answer, ‘to go to the MPP’, which both Dr. Arlani
and Mr. Antoniuk said was correct. Bill Hamilton received three points for the
same two responses as the grievor’s. However, the grievor gave further answers
which were not correct. The Employer showed that although the grievor had
given an answer that was correct, he qualified his answer, making it incorrect, and
showed that he was not familiar with the changes in the Code. He showed
unfamiliarity with the current Code. One of his examples to go to the CMHC was
clearly wrong, as the involvement of the CMHC had been phased out between
1989 to 1991. In the circumstances, given his lack of understanding there is no
basis to find that the Employer erred in its judgment in the points it awarded.
8. As a code advisor, at the end of June you receive a desperate
telephone call from a builder who claims that although his houses are essentially
completed with the exception of the furnaces for the heating systems, the Chief
Building Official has refused to permit occupancy. He claims that although the
heating contractors are on strike he has closing dates to meet from buyers who
have already sold their homes and must move. The builder is requesting that the
Director of Housing Development and Buildings Branch call the CBO and advise
him/her that it is OK to permit occupancy because he is certain that the strike will
be resolved before the heating season. How would you respond to such a
request?
The essence of the question is to determine what should be done when a permit
cannot be given because the heating system has not been completed and is not
functioning, as a result of a labour strike. The model answer stated to “advise the
builder that the Director of Housing Development of the Buildings Branch has no
authority over the enforcement of the Building Code because under the Building
Code Act it is the responsibility of the municipality. The building official does
not have the authority to change the requirements of the code.”
The Union submitted that Mr. Antoniuk’s mark of 3 points out of 4 points for the
grievor should not be changed, but that Dr. Arlani’s should be increased from 2
points to 2.5 points to account for the grievor’s s navigation of the Code. The
Employer submitted that the grievor’s scores should not be changed as the grievor
had not given a complete answer and when prompted gave an incorrect answer.
Initially, the grievor began with the correct answer and said that the Building
Code Official cannot order the change, and cited the correct section of the Code.
The grievor then qualified his answer and said that Building Code Official may
order the change, and then stood by that answer when he was questioned as to
whether there was discretion in the Building Official.
38
Looking at the grievor’s answer as a whole, it was wrong, as the Building Official
did not have the power to change the requirements of the Code. He had no
discretionary power. The prompt was given to encourage him to correct his
answer and return to his originally correct response. Unfortunately, it did not
result in a complete and correct answer. However, as he did navigate the Code in
the right area and initially responded correctly, Dr. Arlani’s score of him, to be
consistent with Dr. Arlani’s philosophy to credit a candidate with analysis when
the candidate is following the correct process, his score should be increased to 2.5
as submitted by the Union.
Bill Hamilton gave a correct answer, but was prompted to expand and did so in by
articulating that it was the responsibility of the municipality and was given full
marks.
9. A designer is proposing construction to convert an existing 10 year old 3
storey commercial school building into studio design offices. He has attempted
an evaluation of the building under Part 11 of the Code, but needs assistance. He
has provided you with the following information: Hazard Index of the existing
use is 6, Construction Index of the existing building is 2, Hazard Index of the new
major occupancy is 4. The designer wants to know whether or not the building
needs to be upgraded to a Construction Index of 4 to match the Hazard Index of
the new major occupancy.
The purpose of this question was to test the candidate’s knowledge of products
under Part 11 of the Code. The question contained all the technical information
that was necessary to determine whether the construction had to be upgraded.
The answer to the question is that it did not need upgrading as the current Hazard
Index was higher than the proposed.
Bill Hamilton received 2 marks from both Dr. Arlani and Mr. Antoniuk for giving
his answer immediately without any analysis. His answer was wrong under the
current Code, but correct under the previous Code. It was the panelists’ view that
Bill Hamilton understood Part 11, but was not aware of the current changes to the
Code in this area.
Ultimately, the grievor gave the correct answer to the question, but both Dr.
Arlani and Mr. Antoniuk only gave him 1 point as he followed the wrong
approach when navigating the Code and did not show that he understood Part 11.
The difference with the grievor’s answers is, that in Dr. Arlani’s view, the grievor
had no understanding of Part 11 as he moved from one area to another and gave
wrong answers. The panel steered him away from the wrong sections. He had to
be prompted to focus on the information given in the question, but he gave a
wrong answer, then looked further and finally came to the right answer, but then
still showed that he was unsure as he continued to look at tables that were not
necessary. Although he navigated through the Code he did not show that he had
followed the right approach.
39
The Union proposed that the grievor receive 5 out of 6 points, losing one point for
his navigation, and the Employer proposed no change in the score as the grievor
did not understand Part 11, which was the purpose of the question.
As the grievor showed no understanding of the section, but nevertheless received
some credit for his answer, I do not find that the panel’s assessment was flawed.
10. There is no need to canvass this question as the grievor was given full
credit for his answer.
11. Can you name some of the other provincial legislation that relate to the
Building Code?
The Union’s criticism of this question is that the number of examples required by
the panelists was not given to the candidates. The Employer submitted that the
Employer considered legislation outside the model answer and the grievor
received credit for three correct examples. However, Employer counsel
submitted, as the grievor also included the Plumbing Code which was not correct,
the score should not be changed as it exhibited a lack of understanding.
The grievor received 2 marks out of 4 from Dr. Arlani and only 1 from Mr.
Antoniuk, as the grievor asked the question to be repeated. Bill Hamilton gave
six correct examples and received full credit for his answer.
As the grievor gave five examples, of which only three were correct, while Bill
Hamilton gave six correct answers, receiving full credit, I see no basis to question
the judgment of the panel.
12. This question does not have to be dealt with as the Union accepts the
grievor’s score of 4 points out of 6 points.
13. The Building Code requires that where low vapour permeance sheathing
or cladding is installed, a vapour barrier with vapour permeance of not more
than 15 ng/Pa.s.m squared shall be used. What constitutes a low vapour
permeance sheathing or cladding and could you provide some examples?
This question calls for a definition followed by some examples. The Union
submitted that this question be removed, as the panelists had noted that the
grievor was confused, and yet they did not rephrase the question. The Union
submitted that it was illogical for the Employer to conclude that the grievor was
not knowledgeable on this topic given his memo on vapour barriers, which was
contained in the materials provided to the panel at the interview. The Union
submitted that the question was also unfair as there was no indication of the
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number of examples required, and that Bill Hamilton was given an unfair
advantage by being prompted after giving a meaningless answer. The Employer
submitted that the Employer is not required to prompt a candidate if the candidate
takes the wrong path, and it was not unfair to prompt a candidate if one candidate
answers correctly, but the other candidate does not.
The grievor received 1 mark from Dr. Arlani and none from Mr. Antoniuk. The
grievor did not define low vapour permeance and he did not give any examples,
which were correct on the basis of the information provided. Although Mr.
Antoniuk noted that the grievor gave two examples, that of an ice or water shield,
Dr. Arlani did not give the grievor credit for these examples as they were not
correct without including the level of vapour permeance. Dr. Arlani gave the
grievor 1 point for navigating the Code and going to the Appendix, which
contained some examples, although the grievor did not refer to them.
Bill Hamilton received 3 points from Dr. Arlani and 2 from Mr. Antoniuk. As
Bill Hamilton defined low vapour permeance, but did not provide the unit of
measurement, he was only given partial credit for his answer. Bill Hamilton then
gave two examples, which were found in the model answer, and was prompted
after giving a third example, “rigid insulation” which was considered inconclusive
by itself.
The Union alleged that the question ought to be eliminated, as it was confusing.
Even though an interview is an oral form of questioning, this question is not
complicated and Bill Hamilton responded to the question as it was given and
therefore is not to be struck. If the grievor had found the question unclear, it was
incumbent upon him to ask for the question to be rephrased. It is not incumbent
upon the interviewers to read into the grievor’s mind and rephrase the question
without being asked.
Although the Union alleged that the panel had acted inconsistently by prompting
Bill Hamilton, and by failing to prompt the grievor, thereby disadvantaging the
grievor, prompting Bill Hamilton in this case was consistent with prompting a
candidate who answers correctly but incompletely, or where an answer requires a
further explanation such as where the grievor was afforded the opportunity in
questions 8 and 14. The prompt to Bill Hamilton occurred once it was apparent
that he knew what low vapour permeance was as he had given the numeric value
for low vapour permeance, and gave examples that could fall with the correct
category indicated that he knew that answer, but his answer was not as complete
as the panelists were seeking.
Unlike Bill Hamilton’s answer, there was no indication in the grievor’s answer
that he knew what low vapour permeance was. The grievor went to the right
source of the examples, the Appendix, but then did not answer the question. The
answer the grievor gave was wrong. His answer was recorded by Dr. Arlani as,
“when you require high permeance must use poly ‘confusing’ CGSB – higher
41
standards”. The confusion that the grievor exhibited was consistent with not
knowing the answer.
The reason that the grievor was not able to respond to this question is unknown
and is purely speculative. Although panels have to consider materials other than
the interview, there is no obligation to ask for and review work samples prior to
the competition in order that they can be considered at the interview in response
to a particular question. The consideration of these materials is properly the
matter for consideration in question 16.
The Union is really asking that the advantage that the grievor was given in his
reply to question 9 be given to him again in this question. For question 9, the
grievor was not following the right approach and was focusing on information
that was not required, he was prompted and gave the right answer although he
was unsure, with the result that he received part credit. The fact that the prompt
gave him a benefit in question 9, which Bill Hamilton did not need, and he
benefited by it, does not make it unfair when he did not then receive a similar
benefit here nor does it support striking the question. On the other hand, to strike
the question, when Bill Hamilton had answered the question, whose answer only
required clarification would be unfair to Bill Hamilton.
The complaint raised by the Union that not setting the number of examples was a
deficiency was not relevant in this situation as the grievor was unable to give any
correct examples.
Although Mr. Antoniuk did not give credit for navigation of the Code, his
approach to this question was consistent with his marking and as mentioned above
reflective of the different approaches of the panelists to the questions, and would
be taken into account in the averaging of the scores.
14. You receive a call from a builder; whom in order to provide more
insulation in the exterior basement wall of a house wants to provide a 290 mm.
unit masonry wall 1.6 m. below grade and extending 150 mm. above grade. On
top of the masonry wall will be provided 150 mm. studs to the underside of the
floor joists. The basement height is 2.2 m. What advice would you give the
builder?
This question is addressing the possibility of structural failure if walls are made
too high without a floor to keep it in place.
The grievor received 3 out of 4 from Dr. Arlani, and 4 out of 4 from Mr.
Antoniuk. The grievor was prompted for the solution after giving the correct
answer. The answer the grievor gave was correct, but not sufficiently technical
for Dr. Arlani.
42
As the grievor’s answer was correct as acknowledged by Mr. Antoniuk and
matched the model, he should be given full credit for his answer. Dr. Arlani’s
score is to be increased to 4.
15. The joist spans in Table A-2 for joists with concrete toppings show
allowable joist spans equal or in some cases more than that of joists provided
with finish flooring as required by the code. Could you explain the reason for
that?
The question is dealing with structural design and requirements in Part 9, and is
asking if concrete is put on top of the sub-floor, what does it do, and why does it
permit some relaxation as opposed to when other members are used. The model
answer addresses the increase in composite action and stiffness of the floor by this
construction.
The grievor was given 3 out of 5 by Dr. Arlani and 4 out of 5 by Mr. Antoniuk for
his answer that it is the “T” effect on the joists which creates more stability to the
top. Bill Hamilton received a lower score than the grievor, 2 points from Dr.
Arlani and 4 points from Mr. Antoniuk, when he referred to the composite action
and stiffness, after he wrongly focused on the ceiling and was re-directed to the
sub-floor.
The Employer submitted that the score should remain unchanged as the grievor’s
was answer incomplete, as it did not deal with a composite action, and he received
the same score as in Competition #3, which was not challenged by the Union,
where he included the additional factor of stiffness. Dr. Arlani saw the grievor as
responding correctly but not in full.
By referring to the “T” action on the joist Peter addressed one of the elements of
the composite action, and he addressed the issue of stability. Mr. Antoniuk
accepted the answer that a “T” effect creates a composite action, even though Mr.
Antoniuk subsequently qualified his answer to an extent that it also requires
exertion to obtain that composite action. Dr. Arlani’s score should be amended to
4 to accord with Mr. Antoniuk’s interpretation of the answer. If the answer was
correct, but not as complete as Dr. Arlani was seeking, the grievor ought to have
been prompted to expand his answer as in earlier questions.
16. What other information about your abilities or knowledge can you give to
assist us in determining your suitability for the position?
Question 16 called for any information that related to suitability, which would
include the materials the grievor supplied. The grievor was the only candidate to
have provided additional materials. Although there was an issue as to whether the
grievor left the materials or whether they were given back to him, it was clear
from Dr. Arlani’s evidence that he did not consider them. He said in regard to the
third competition that he would only have done so if the grievor were to be
43
considered for the position after the interview. He inferred that it would have
been prejudicial to consider these materials, when the other applicants had not
been asked for similar examples, and had not left other materials. Mr. Antoniuk
had glanced at the materials and did note his observations in question 16.
The process of assessing candidates for a position includes a consideration of not
only the answers given in an interview, but other available information on the
skills and abilities of the candidates. Under the Guidelines G-3-2-20, work
samples should be considered and if they are not available other forms of
assessment can be considered. The panel ought to have taken the materials into
account under the direction of the Guidelines and in direct response to the
question the panel had posed.
Dr. Arlani did not take any account of the grievor’s outside material. Information
from these materials contained Required Revisions to Drawings as presented by
the grievor from 1980 and 1981 which showed that the grievor had more Code
knowledge than that relating to roofing. The Required Revisions to Drawings
proposed in 1993, showed Part 3 knowledge, and then knowledge of Parts 3 and 9
of the Code when he was an Architectural Technologist in 1994. These materials
support the grievor’s contention that he had knowledge of the Code in its prior
form although it does not demonstrate any knowledge beyond that shown in his
resume that would show knowledge of the revised Code.
As mentioned with respect to question 13, the grievor did include among his work
samples, the letters and further documentation which showed knowledge of
vapour barriers under Part 9 in 1993, and of sprinkling requirements in the 1990s.
The information included a definition of vapour barriers, and its relationship to
low vapour permeance and determined that the substance ‘monoglass’ met the
standard for vapour barriers that incorporate exterior cladding or sheathing having
a low water vapour permeance. Although this paper only referred to one
particular substance, his paper went to the very issue that was to have been
addressed in question 13. Therefore even though the grievor was not able to
answer question 13 correctly, this outside material showed knowledge at a
particular time, and showed that given the issue in a working context, he could
analyze the issue and find the answer. It was further supported by Larry Hom’s
comments in his performance appraisal. As the purpose of the competition
process is to ascertain the abilities of the candidates, and not to rely solely on the
interviews, as articulated by Vice-Chair Dissanayake in Esmail, this additional
information should be given some weight.
After assessing the grievor’s testimony and accounting for the information
provided in his resume, covering letters and materials given to the panel, which
supported his resume, Dr. Arlani’s score for the grievor should be increased to 8.5
points, as he conceded in his cross-examination that the additional information
that he had led him to believe that a score of 8 to 8.5 was appropriate. A score of
8.5 bears a relationship to Dr. Arlani’s marking of Bill Hamilton, whom he gave 6
44
points, and who did not provide other information but showed stronger technical
background from working with the Code on a daily basis as a Code Advisor with
the Ontario Realty Corporation from 1990.
Unlike Dr. Arlani, Mr. Antoniuk did give the work samples some consideration.
As he had noted on his questionnaire, Mr. Antoniuk testified that he did consider
the materials as drew from them that the grievor had analytical skills, an ability to
communicate, had a background in Code work and had worked as a Plans
Examiner. He did not address the accuracy or depth of the particular information
in the material given to the panel.
In my view Mr. Antoniuk’s assessment in providing the combined score to
questions 1 and 16, is to some degree flawed, in three aspects. He should have
given some weight to the excellent performance appraisal which the grievor had
received and which Mr. Antoniuk agreed, would have had a positive effect on
him, if he had considered it. He gave weight to the grievor’s past experience with
Bramalea in construction in the third competition, as the grievor had answered in
more detail in the third competition, however, this background in construction
was evident particularly in his Required Revisions to Drawings of 1980 which the
grievor had provided at the interview. Finally the material on the vapour barriers
and the remarks of his supervisor on the grievor’s work on vapour barriers,
indicated that he had knowledge of the area, although he was not able to draw
upon it at the interview. It would appear that on the information that was
provided, in this question, it would have been more consistent for Mr. Antoniuk to
have considered him relatively comparable to Bill Hamilton, who did not have
any extra materials to consider, but whose resume, showed past and present daily
use of the Code, as a Plans Examiner and in training and experience in the Ontario
Realty Corporation in the Building Code Advisory section, and courses on the
Code.
The Written Question
The candidates were asked to draft a reply to a letter for an opinion on an
application for a permit under Article 9.10.11.1. The question concerned whether
there should be firewalls between all units of a multi-use building which was
composed of a two storey residential townhouse above a commercial unit. The
building was under one ownership, but had the capability to be severed in the
future.
The Union accepted the Employer’s mark of 15 out of 20 for communications, but
disputed the score of 0 out of 10 on its technical merits and submitted that 8
marks should be substituted.
Dr. Arlani was looking for two things in the responses, the ability to analyze the
issue and the ability to give advice. There were two technical aspects to be dealt
45
with, the requirements in the Code for separating residential units, and the effect
of the capability of future severance. Although Dr. Arlani says the grievor’s
answer was wrong he was prepared to give him 2 points, instead of the 0 that he
had given him.
The grievor correctly concluded that a fire separation was required but did not
take into account the garage or commercial space beneath the residential units and
therefore gave the wrong rating for the fire separation. He also came to the wrong
conclusion that this rating would suffice if there were a future severance.
The Union argued that the grievor was essentially correct, as he understood the
concept of a fire separation. The Union pointed out that Bill Hamilton was given
10 points out of 10 for a wrong answer, when he said, that a municipality may as
a condition of approving the severance require firewalls during initial
construction.
The Employer argued the grievor was wrong on the main technical points. He
started from the wrong premise. He wrongly stated that a severance could not
occur because there was a commercial component immediately under the
residential component. He did not understand that the building was capable of
becoming separate real estate entities and that the Code would permit a severance
in the future. For the residential units, he pointed to fire separation, which was
correct, but then gave the wrong fire rating. Employer was prepared to concede
that the grievor should get 2 points as conceded by Dr. Arlani.
In reviewing the grievor’s s opinion, in this example, the grievor analyzed the
problem, but gave the wrong advice. The grievor did not understand the future
capability for severance, he thought that the building could not be severed. He
understood the current requirement of a fire separation, but quoted the wrong
rating because he did not understand or account for the commercial use under the
residential units. He categorized the problem incorrectly from the start.
Therefore the Union was unable to establish any basis for increasing the mark
based on its technical correctness, beyond that which Dr. Arlani conceded ought
to have been granted.
The flaw in the marking of this question, taking into account Dr. Arlani’s
concession is not the marking of the grievor’s answer but the marking of Bill
Hamilton’s answer. As the criteria for the marking component was technical
expertise, Bill Hamilton should not have received full credit for an answer that
was wrong. If anything, it is Bill Hamilton’s mark for this component of the
assessment that should have been decreased. To increase the grievor’s score,
where it was incorrect, would be creating a distortion of his abilities in regard to
this issue.
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Review of Competition #2
In reviewing a job competition the role of the Board is not to step into the place of
management and to score the applicants in its stead, but it is to determine when
ascertaining if article 6.3 was breached:
A. whether the interview process which includes the nature of the questions and the
model answers, and how the questions were answered was so fundamentally flawed that
the panel did not properly evaluate the candidates’ qualifications and abilities; and
B. whether the treatment of the various candidates in the interview process was
substantially inconsistent to the effect that the interview process was flawed in evaluating
the qualifications and abilities of the candidates.
The grievor believed that the panel was “going through the motions” as the panel did not
look at the material he had filed, and that he believed that as there were no comments on
Mr. Gryffyn’s questionnaire that Mr. Gryffyn was not taking the competition seriously.
Although Dr. Arlani did not look at the materials which the grievor provided, it was not
to ignore the grievor, but to treat all candidates equally. Contrary to “going through the
motions” both Dr. Arlani and Mr. Antoniuk considered each question, annotated the
responses and duly weighed their marking. There is no basis for any lack of
consideration given to the grievor’s application. I find that the approaches taken by Dr.
Arlani and Mr. Antoniuk were thorough and that neither exhibited any preconceived
notions or bias. While it was apparent from Mr. Gryffyn’s scoring and questionnaires
that he did not take many notes, the grievor’s interview was not shown to be treated
differently from his consideration of other candidates. Therefore I find that this
competition was not tainted by any acts or omissions by any of the panelists.
In order to address the questions as to whether the assessment process was so
fundamentally flawed that the panel did not properly evaluate the candidates’
qualifications and abilities, and whether the panelists treated the candidates substantially
inconsistently that the competition is flawed, it is necessary to look at the apparent flaws
and place them in the overall context of the competition.
The most significant flaw of these competitions is the failure of the Employer to look at
any of the personnel files of any of the candidates. The importance of looking at these
files is set out in the Guidelines at G.4.2.21 where they point out that personnel files and
performance appraisals are potential sources of information about the employee’s past,
which should not be overlooked. The Guidelines indicate their value, as they provide
information, which can be followed up in interviews or reference checks. Therefore the
purpose of looking at the personnel files is to add depth to the evaluation process, so that
the panel is not looking solely at the ability of the candidates to answer any question on a
particular day, but to provide a greater understanding of their past performance and their
abilities to determine their suitability for the position.
47
The importance of looking beyond the interviews was emphasized in the Sauve and
Esmail decisions which held that it is incumbent upon the Employer not to rely solely on
the interviews, but to look at other background materials such as personnel files,
information from supervisors and work samples to enable to the Employer to assess the
candidate’s capabilities as they relate to the requirements of the position. The Board
stated at page 9 of Sauve:
The Board has repeatedly observed that qualifications and abilities
should not be assessed solely on the basis of an applicant’s
performance during the selection process. Past job performance,
particularly of similar job functions, must also be considered and
given appropriate weight. The Board has found Article 4.3
contravened when the selection committee relied exclusively or
unduly on interview results and gave too little or no weight or no
weight to past performance in assessing qualifications and ability:
Christmas and Chaput 907/86 (Gandz): Skagen and Glemnitz,
1934/87 (Springate); Poole, 2508/87 (Samuels); Hall/Powers,
716/89 (Gorsky). It is not enough to treat past related experience
as a basis for pre-interview screening and ignore it thereafter – past
related experience must be given weight in assessing the relative
qualifications and abilities of the final candidates: Nixon, 2417/87
(Fisher), McIlwain, 628/89 (Verity).
Properly prepared and conducted tests may be used as part of the
selection process, subject to the limitation that applies to interview:
The results of a test should not be relied upon to the exclusion of
other evidence of the qualifications and abilities which the test is
designed to measure….
Most job specifications list several distinct job activities. Some of
those activities may form a greater part of the job than others, and
each activity may require a distinct qualification or ability. As part
of its selection process, the employer may establish a reasonable
minimum for each required qualification or ability, and may refuse
to consider further those applicants whose applications do not
claim that they have, and are not known to the employer to have,
(or are found not to have) one of these essential minimum
qualifications or abilities: Moses, 715/89 (Barrett); Sequeira and
Lueck, 766/87 (Gandz); Bent, 0031/88 (Knopf).
The Employee Portfolio which contained the grievor’s performance appraisal was placed
in evidence. As mentioned earlier, if the panel had looked at the performance appraisal
they would have found that the grievor’s supervisor gave the grievor an excellent review.
As the performance review was done in 1992, the reference by Larry Hom, that the
grievor had an excellent knowledge Code related to an earlier revision of the Code. That
performance appraisal would not have allayed the Employer’s concerns that the grievor’s
knowledge of the Code was not current. By the time of the second competition, the
48
Code, which is overhauled approximately every five years, had been updated, it had
incorporated approximately 1,200 changes.
The Employer’s concern that the candidates had to have current knowledge of the Code
was a valid concern, as the nature of the position was to provide advice to third parties
based on the Advisor’s interpretation of the Code. Giving advice on the Code, is the very
essence of the position and errors in the interpretation of the Code could expose the
Ministry to liability. Therefore although the Guidelines asked selection committees to
avoid selecting candidates based upon their recent experience where it is not necessary, in
this case current knowledge was vital to the proper performance of the job, both as an
advisor to others and as a trainer of others. Therefore although the Employer expected to
have to accommodate and supervise a new candidate for a period of one to four months,
knowledge of the current Code was a qualification required for the job, and one which
had to be assessed. The Employer was entitled to look on a comparative basis for the
person who best met their criteria, and standards, which included current knowledge of
the Code.
The next concern relates to inconsistencies in prompting and its effect on the scores.
Prompting, in one respect, is very similar to the direction in the Guidelines to go beyond
the interview to consider other sources of information to enable the panelists to more
properly assess a candidate’s suitability. It is not a precise tool, but is a communication
tool that allows some exchange between the interviewers and the interviewee and enables
the panelists to probe a candidate’s answer to determine if the candidate understands or
has knowledge in the area being considered.
It must first be assumed by the panel as a general presumption, that the candidate gives
his or her best answer to the question when responding. The panelists are then in the best
position to assess from the way the answer is given, whether it was intended to be
complete, was the candidate mislead by the question, or whether the candidate did not
know the answer. These are nuances which only the panelists and not a Board can detect.
A review of the interviews is not based upon a transcript of the questions, but is based
upon the recollections of various witnesses, which are supported by their notes and
scores.
In Competition #2, prompts were given when a candidate showed that he or she knew the
answer, but the answer given was incomplete. This approach was reflected in question 8,
when Bill Hamilton was prompted to give a more complete answer, he did and then he
was given full marks for it. The grievor was treated in the same way in this question, but
the prompt resulted in a wrong answer, and he was accordingly marked. They were also
used at times to redirect a candidate if the candidate was not focused on the question.
In this competition, I find that there was no intention to treat the candidates differently,
and they were not treated differently in any material way. The scoring following the
prompting related to the panel’s assessment of the candidate’s comprehension and
knowledge of the area. As there was no discussion prior to the competition as to how
prompts were to be treated there were some inconsistencies in its application, but even
49
without accounting for some adjustment in the scores, it was balanced for the most part.
The Union did not prove on a balance of probabilities that any consistencies were such
that the questions and the competition were fundamentally flawed.
I have considered inconsistencies in navigation of the Code within the interview
questions. I view their nature and their application in a similar manner as I do the
inconsistencies in prompting. The panelists saw how the candidates used the Code and
then responded to the questions.
The best probable method of scoring a competition would have been for the panelists to
decide prior to the competition, whether or not there should be points for analysis, and for
referring to the Code. Even so, it may also have been difficult to apply without any
criticism. In any event, in this case the panelists did not put their mind to the issue, but
followed their own approach. The candidates were told that the Code was there to assist
them in their answers. Therefore looking at the Code should not and did not serve to
deprive them of marks. There were no points given for navigation of the Code where the
answer was correct. However, where an answer was partially correct, as in question 2,
Dr. Arlani gave points for navigation, on the basis that it indicated an analysis, although
he did fail to do so in question 8. Dr. Arlani did not give any points for navigation where
the answer was wrong. Where there were inconsistencies in Dr. Arlani whose approach
was to assist the candidate, the inconsistencies were minor and did not materially affect
the competition. Mr. Antoniuk consistently did not give points for navigation, but was
only looking for the correct answer.
Although the assessors took different approaches, as they applied their own approach for
the most part consistently to the candidates, the combination and averaging of their scores
takes into account the differences between them and therefore any flaw was minor in
effect and not fatal to the competition.
The Union alleged that the Employer did not take into account correct answers that were
outside the model answers. I have already dealt with this issue as it arose, when
reviewing the individual questions and answers.
The Union also claimed that the failure of the Employer to obtain the grievor’s references
and to call references for the candidates constituted a flaw in the assessment process.
Although it is unclear whether the grievor failed to leave his consent to contact his
references, or whether the Employer merely did not contact them, it was not relevant.
The requirement under the Directive D.4.2.4, to contact references arises only as it relates
to those who the Employer would offer the position if the references are satisfactory. As
the grievor was did not meet the minimum standard set by the Employer, this was
required in competition #2.
In summary, there were in essence two types of flaws suggested by the Union. First there
was the failure to look beyond the interview itself and consider performance appraisals,
comments of the supervisor and work samples. The second were flaws in the
administration of the interview. They were flaws, but they were not flaws which if
50
corrected would likely impacted this competition significantly. A consideration of
outside sources would have strengthened the grievor’s position, but not have established
him as meeting the minimum standard set by the Employer for the performance of the
job. Within the administration of the interviews themselves, even when considering
adjustments in the scores, as reflected above, the grievor did not meet the minimum
standard, which the Employer set as a requirement for the position, which was reasonable
in the circumstances.
Therefore the Union did not discharge the onus on it to establish on a balance of
probabilities that had the defects not occurred that the grievor would have met the criteria
established by the Employer. I do not find that the Union has been able to prove on a
balance of probabilities that the Employer breached article 6.1 in failing to appoint the
grievor to the position on the evidence and arguments on these issues.
Surplus Issue
The Union also claimed that the grievor was entitled to the position as he had been placed
on surplus.
The Employer breached Directive 4.2.2 which directed the Employer, “prior to taking
any staffing action, the ministry must determine if there are any surplus employees by
sending to the Redeployment Unit, Employee Services Branch, Human Resources
Secretariat, either: - a copy of the advertisement/posting, or specific information about
the vacancy”. However, pursuant to Article 20.5.1, of the collective agreement, the
employee has to be in the same classification to be entitled for the position. In this
situation, the grievor was surplused from the position of Architectural Technologist
which was a different classification from that of the Building Code Advisor position and
therefore he was not entitled to the position on this basis. Therefore the breach does not
affect the grievor.
As stated above the grievor was not entitled to the Building Code Advisor position on the
basis of a surplus employee, and therefore he was not prejudiced when the selection
committee was directed to consider underfill positions, after the closing of the
competition.
Considering the evidence, and the submissions of counsel, as discussed above there is no
violation of article 6.3 in Competition #2, and the grievance relating to Competition #2 is
dismissed.
Competition 3 Questions
Some of the questions in the third competition were the same as in the second, and those
which were different were similar in nature. As in the previous competition the questions
all were directly related to the job and its functions.
51
1. How does your past experience qualify you for the job?
This question is to be considered with question 14 which asks:
what other information about your abilities or knowledge can you give to assist us
in determining your suitability?
As in the second competition this question provides the opportunity for the
candidate to express and expand on his qualifications, credentials and experience
as it relates to the job, both at the beginning and the end of the interview.
The Union submitted that the grievor’s resume showed that he was more qualified
than Ann Reid for the position, and accordingly his score should be greater. The
Union accepted Dr. Arlani’s and Mr. Antoniuk’s score, but submitted that Mr.
Gryffyn’s scoring should be increased to 8.
The Union did not show that Mr. Gryffyn’s judgment was in error.
There is no dispute over the scoring of the grievor by Dr. Arlani and Mr.
Antoniuk.
2. If a building inspector observes that a building is being built without a
permit, what can the inspector do?
This is the same question as question 2 in the second competition. The grievor
received 2 marks from both Dr. Arlani and Mr. Antoniuk for his response.
The Union made the same submissions on the flaws to this question, as it had in
Competition #2. Union counsel asserted that the question was confusing as the
model answer included a function ‘to obtain a stop work order’, which was not
the inspector’s function, that answers outside the model answer be accepted, and
that was not asking that the candidate describe the steps the inspector would take
sequentially and therefore his answers were correct. The Union submitted that the
grievor gave three correct answers, being ‘a stop work order’, ‘a restraining order’
and ‘a conditional permit’ and therefore he should be given three points. The
Union submitted that the grievor was prejudiced by not knowing the number of
examples the panel was seeking. The Employer again submitted that the
conditional permit was not a correct answer.
I accept Dr. Arlani’s evidence, as corroborated by Mr. Antoniuk, that the answer
that a conditional permit is wrong, as he stated that the inspector issues an order to
comply, and it is the municipality that determines the nature of the permit. As in
the previous competition the answer to obtain a stop order was a function of the
Chief Building Official and not the inspector. Nevertheless, the grievor was
credited with that answer as was Ann Reid and Ben Pucci. As a result, Kuntz
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only had two correct answers, for the stop work order and for the restraining
order.
Ben Pucci received 5 points for five correct answers including the stop work order
which was outside the model answer from both Dr. Arlani and Mr. Antoniuk.
Ann Reid missed one step and only received a score of 4.
As each was given a point for each correct answer, including the stop work order,
the grievor was marked consistently, as he only gave two correct answers.
The Union submitted that the question was flawed as it did not advise the
candidates the number of examples it was seeking. While this in certain
circumstances, could be a flaw that would prejudice a candidate, in this case the
question was structured to require the candidate to describe what an inspector
would do. That would suggest that a complete answer was being called for. In
any event, the grievor was prompted by the panel and was asked if there was
anything else. In this context the failure to advise how many examples the panel
was seeking was not a flaw.
3. The Union was not seeking a change to this score.
4. A 600 square metre two storey building contains eight two bedroom apartments.
There are four units on the first floor and four units on the second floor. The four
apartments on the second floor open into a single exit with each having a second
means of egress. The four apartments on the first floor have direct access to the
exterior.
According to the building code is a fire alarm required?
Dr. Arlani stated this question was intended to reflect the type of technical
questions that Building Code Advisors are asked. By asking whether a fire alarm
is needed in a building, the question was intended to test knowledge of fire safety
measures and Part 9 of the Code.
The grievor gave a correct answer for a Part 3 building, which was not the answer
called for by this question. When he learned after a prompt, that it was not a Part
3 answer, he gave a correct answer for a Part 9 building. The grievor received 5
out of 6 from both Dr. Arlani and Mr. Antoniuk. The Union submitted that the
grievor ought to have received full credit for giving a correct answer for a Part 3
building. The Union submitted that the grievor should not be penalized for not
hearing ‘600 square metre’, which is the distinguishing characteristic between a
Part 3 and Part 9 building.
Both Ann Reid and Ben Pucci understood the criteria for the question. If the
grievor had not heard the question or had not understood the scope of the
question, he should have asked for the panel to repeat the question. It is a
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supposition on the Union’s part that he did not hear the question. If candidates,
such as Ann Reid and Ben Pucci, give the correct answer to a question on being
asked, those candidates deserve full marks. However, where a candidate would
not have given a correct answer if the candidate had not been prompted, that
candidate on a comparative basis, should receive a lower mark than the others.
The grievor received a benefit from this prompt which enabled him to give a
correct answer upon reflection. Therefore there is no change to this mark.
5. A supplier claims that she has a product which she feels exceeds the requirements
of the Building Code, but building officials around the province would not accept
its use. The reason for the refusal is that her product is tested to a standard other
than that specified in the Building Code.
What are the options in building Code/Act that would permit her the use of her
product?
As there are always new products coming onto the market after the Code is
revised, the panel was looking for the process that a supplier must follow to allow
her to use the product.
Dr. Arlani and Mr. Antoniuk each gave the grievor 3 out of 5 for giving three
correct answers, ‘applying to the Building Materials and Evaluation Commission
(BMEC)’, for ‘testing’ and for ‘equivalency’, a correct answer outside the model
answer. There was no effect on his score when he gave a wrong answer, to go to
the CMHC. The Union challenged the scoring and claimed that he should be
given 4 points for 4 correct answers, as Mr. Gryffyn’s had checked off ’go to the
Building Commission’, one of the model answers. The Union also claimed that
the marking of this question is flawed as Ann Reid was given full credit by Mr.
Antoniuk after giving 4 correct answers and then after being prompted, was given
credit for the final point. The Employer claimed the panelists gave the grievor
credit for his correct answer. The Employer submitted that Ann Reid’s scoring
was not inappropriate. Unlike the grievor who gave an incorrect answer, Ann
Reid gave no incorrect answers, and had already given four correct answers
before the prompt.
To ‘go to the Building Code Commission’ is a correct response and would have
entitled the grievor to an additional point if he had given that response. Dr. Arlani
and Mr. Antoniuk had consistently carefully noted the responses given by the
candidates and neither of them had marked this as a response. As Mr. Gryffyn
had not checked off BMEC from the model answer as had Dr. Arlani and Mr.
Antoniuk, it is more than likely an error that Mr. Gryffyn had not checked off the
right commission. Even within Mr. Gryffyn’s questionnaire, four correct points
were not given.
The Union contended this question is an example where a candidate is mislead by
not knowing the number of examples sought. With respect, I do not agree, as the
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question is asking for the options that a supplier has under the Code, which would
be definable by the answer. The grievor gave a series of options and which
included a reference to an agency that has not existed after 1990. He gave six
options which contained three correct answers and then an incorrect answer and
he received credit for the correct answers without prompting. The panel would
have been in the position to determine from the way the grievor answered if he
believed he had given a full and complete answer. The grievor was credited for
his correct answers. This was unlike Ann Reid who gave four correct answers
and was prompted to complete the options
Therefore there is no change to the grievor’s s score.
6. A second storey office building has a horizontal dimension of 12 m. x 20 m.
According to the Building Code, what is the least distance required between two
exits served by a public corridor?
This question is looking for the minimum distance served by a public corridor.
This was an analytical question in which the candidate had to evaluate the design
proposal, compare it with the Code and make a decision. The sizing was given to
allow the candidates to answer the question without calculators. The key to this
question is whether or not the exits are served by a public corridor.
The grievor received 3 marks out of 6 from both Dr. Arlani and Mr. Antoniuk for
his response to this question. The Union submitted that the grievor ought to
receive full marks on the basis that, he was prompted away from the correct
answer, and, Ann Reid received full credit when she was marked against the
model answer, which was wrong. The Employer argued that as the grievor only
went to the correct article, but did not give the answer which was contained
within that article, so that he was not entitled to full credit for his answer.
The model answer for Question 6 was reproduced incorrectly, but it is clear from
looking at all the answers given and how they were marked by each panelist, that
all the candidates, including Ann Reid, were marked against the correct answer of
9 metres.
I do not accept the Union’s submission that the grievor was prompted away from
the correct answer. In order to answer this question, the grievor had to interpret
and apply the Code and was unable to do so. The grievor went to the correct
section of the Code, but did not give the distance which was the answer to the
question. There was no unfairness in prompting him. On the contrary, the
prompt was to help him attain a complete answer. If he had not been prompted,
he would only have shown correct navigation of the Code, and would not have
answered the question, and would not have had an opportunity to receive full
credit. However, after the prompt, instead of then giving the correct answer, he
moved to a different part of the Code, which supported the panelists’ views, as
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annotated in their notes, that the grievor was not able to interpret the Code in this
area.
The net result is, that the grievor was only partially correct, and both Dr. Arlani
and Mr. Antoniuk credited him for looking at the right article of the Code. There
is no basis to change the grievor’s s scores for this question.
7. What is the permitted maximum percentage of glazed areas of a sprinklered
house, with an exposing building face of 40 square meters and a limiting distance
of 2 meters?
The question is asking how large the windows may be in the context of an
exposed building face of a sprinklered house. Given the area, the glazed area is
not permitted to be doubled as in the case of unprotected openings. The question
was drawing on the ability to go to a Table, read the number and make a decision
whether the area could be doubled or not.
There was an error in the total value of this answer on the question page. It said
that it was worth 6 points, and not 5 points as recorded on the model answers. Dr.
Arlani agreed, and the Employer conceded, that as submitted by the Union that
Dr. Arlani’s mark for the grievor should be 5, and therefore this adjustment is to
be made.
Mr. Antoniuk felt his mark should not be changed as in hindsight he had given too
high a mark for the answer.
The grievor was scored generously for his analysis, even though again he was
looking at Part 3 buildings and not houses as governed by Part 9 and then gave an
incorrect answer. However, as there was no indication that Mr. Antoniuk was
aware that the value of the question was 6, as his model answer template also
showed that the value was 5, his score should be adjusted from 4 to 5 to
compensate for the full value of the answer.
8. According to the current building code, can a building be classified as a Group C
major occupancy apartment building if 25 per cent of the dwelling units are
leased to individual couples who require assistance in evacuation in case of an
emergency?
This question was designed to test how knowledgeable the candidate was on the
amendments to the Code. This question was based on the 1997 Code, which was
amended to add a new type of care. The issue is if a building had 25% of the
people in the units with a disability which prevented them from leaving the
building on their own, could the building still be treated as a residential building
or was it to be treated in another way. The approach was to go to the Code and
determine what ‘occupancy’ was, and what was ‘care’, and then conclude that as
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it was a dwelling, it was not a care facility. It could still be a residential building,
as the care facilities as defined do not include a dwelling.
The grievor received 3 out of 6 from Dr. Arlani and only 1 out of 6 from Mr.
Antoniuk. The Union submitted that the treatment of Ann Reid and the grievor
were not comparable. Ann Reid was only deducted one mark for coming to a
wrong conclusion, while the grievor gave a right answer and was prompted,
which resulted in him giving a neutral or wrong answer and then received less
credit for this answer. The Employer submitted that the Union was confused as to
what was the correct answer for this question. She submitted that at no time did
the grievor say that it was a Group C major occupancy, which was the correct
answer. Employer counsel submitted that Dr. Arlani gave the grievor credit for
going to the definition of ‘occupancy’ and for being aware that changes had been
made to the Code in this area, and Mr. Antoniuk credited him with one point for
being aware that this area of the Code had changed. Therefore, she submitted that
the grievor’s score ought not to be changed.
Ann Reid correctly navigated through the Code, came to the right conclusion that
it was a Group C major occupancy, but then added that it had a subsidiary B-3
group, which was wrong. As a result of qualifying her answer incorrectly, she
lost points and she received 5 out of 6 from Dr. Arlani and 4 out of 6 from Mr.
Antoniuk. The grievor, in comparison to Ann Reid, did not go as far as Ann Reid.
He started in the right section, thought there were changes but did not know their
effect and could not make the correct deductions, with the result that he gave the
wrong answer. He thought the building had to be a care facility. Therefore, the
grievor was not scored inconsistently with Ann Reid as suggested by Union.
The grievor was marked fairly, essentially for navigating the Code, since at no
time did he give the correct answer. Mr. Antoniuk gave him one point for
knowing that there had been changes made after noting that he took five minutes
to come to an answer and required prompting. Although he had left materials
with the panel that showed work in this area, he was not able to demonstrate to
the panel that he understood this area, even when they attempted to assist him
with a prompt. As it was not apparent that the grievor knew this area, there is no
basis to change this score.
9. You have been assigned to make a presentation at a meeting for 50 building
inspectors on firestopping requirements in the Building Code. How would you
plan your presentation?
This question tests the capacity to plan and organize conferences. The panel was
looking more at the organization than technical aspects.
Both Dr. Arlani and Mr. Antoniuk gave the grievor 4 points out of 5 for his
response.
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Dr. Arlani did not give the grievor full marks as he started with the technical
aspect prior to the planning aspect. Mr. Antoniuk marked the grievor’s answer in
relation to the other candidates and found that it was not as complete as Ann
Reid’s. He testified, in hindsight that although Ann Reid’s answer was in his
view better than the grievor’s, the grievor’s answer was better than Ben Pucci’s.
The Union submitted that the grievor was inappropriately penalized for
approaching the answer from a technical perspective first, as the approach
required was not clear from the question. The Union further submitted that the
grievor had received a perfect score for his answer in the second competition and
therefore he knew the answer. The Employer submitted that the grievor lost
points for not considering the interests of the group and therefore his scores
should not be changed.
Dr. Arlani incorrectly deducted points from the grievor for beginning with the
technical aspects in planning a conference, as there was no indication in the
question that would guide the candidate to a particular sequencing. The grievor
touched upon all of the issues in the model answer with the exception of finding
out what would interest the inspectors. He did however, put his mind to the
group’s technical knowledge and understood that the issue of firestopping was
broad. He also went outside the model answer to bring in other elements, none of
which were wrong. Therefore Dr. Arlani’s assessment was flawed and
accordingly an adjustment can be made to give the grievor a score of 5.
As this question is an open ended question, which the panel recognized in setting
out the model answer, a relative comparison of the candidate’s answers is valid
and therefore to account for the relative difference between the grievor’s answers
and that of Ann Reid’s and Ben Pucci’s, Mr. Antoniuk’s score is to be adjusted to
4.5.
10. During an extensive renovation of an old Part 9 building constructed of heavy
timber, it is discovered that some of the heavy timber columns are within 95% of
the size required to obtain a 45 minute rating as required. Because of the
aesthetic appearance the building is proposing to use compliance alternative
(C130) in order to leave the columns unprotected. Is the CBO approval
required?
The question was designed to gage the candidate’s knowledge of renovations, as
opposed to new construction. Renovation is governed by a stand alone section of
the Code. In the model answer approval of the Chief Building Official was
required. The model answer states: “Yes. According to Article 11.3.3.2 only
alternative measures are allowed to be proposed for deficiencies in the fire-
resistance rating. C 130 may be proposed as an alternative measure, but the CBO
approval will be required.”
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The grievor received 1 out of 6 from Dr. Arlani, and 0 out of 6 from Mr.
Antoniuk. The Union claimed that the question was flawed, as it did not refer to
an exception, and further, the grievor had given the correct answer and should be
credited for it. The Employer submitted that the Employer witnesses testified at
length why the model answer was the only answer to this question. Although
counsel debated with the witnesses over the answer, no evidence was brought to
support the Union’s interpretation of the answer.
In order to respond to this question, an analysis of the Code is required. The Code
distinguishes between two types of renovation, basic renovation and extensive
renovations. If it were a basic renovation and the builder wanted to use a
compliance alternative, which would be to use existing timbers C130, as set out in
Table 11.5.1.1.C, then they could be used without obtaining the approval of the
Chief Building Official. However, as it is an extensive renovation, the
consideration falls under 11.3.3.2 Extensive Renovation provisions, which
requires code compliance, unless the use falls under the Alternative Measures
section of 11.5.2, in which case the use requires a Chief Building Official’s
approval whether it is compliant with the Code, which in this case is Part 9, or
whether it is a Compliance Alternative which is impractical due to certain
reasons. The difference between the Employer’s and the Union’s interpretation
lies on the interplay of the sections. The Employer’s interpretation is that the two
sections are self sustaining, and the effect of the Union’s submission is that the
allowances as set out in 11.5.5.5.(2) can be substituted into 11.5.2.1.
As neither Dr. Arlani nor Mr. Antoniuk agreed with the Union’s opinion of the
answer, and the Employer’s interpretation is not clearly wrong, and there was no
evidence from the Union to support their interpretation, I find that the model
answer can be relied on as the answer to the question.
Even if the Union were correct, which I do not find, in showing that the model
answer was wrong, the grievor did not show any analysis behind his answer, to
show that he understood the sections and whether or not they applied. In this
instance, the grievor checked the Table in the Code that related to the Compliance
Measure C130, but gave a wrong answer without any analysis. Although the
panel has given points in this competition, where there had been an analysis in
another question even if the conclusion were wrong, this approach would not be
applicable in this instance.
However, the grievor’s answer was not treated in the same manner as Dr. Arlani
treated Ann Reid’s answer. The grievor followed the same procedure as Ann
Reid, and as with Ann Reid came up with the wrong answer. The grievor went to
the reference in the Table which was referred to by C130 and Ann Reid went to
the Code provision where compliance alternatives were referred to. Neither was
able to go further. Therefore it was an error not to treat the grievor and Ann Reid
alike. Therefore Dr. Arlani’s score is to be changed to 2 points to reflect the same
approach as he took with Ann Reid.
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Mr. Antoniuk treated the grievor’s answer in the same way as he treated Ben
Pucci. As there was no analysis by either of them to show that they understood
the question he gave neither of them any credit. The grievor’s s answer was more
comparable to Ann Reid’s as he looked to the Code in the same way, rather than
to Ben Pucci’s answer who said that the City must approve everything, which
answer showed no comprehension of the issues. As the grievor’s answer was
comparable to Ann Reid’s and Mr. Antoniuk did not treat him in the same way as
Ann Reid’s, there was an error in assessment and Mr. Antoniuk’s score is to be
amended to 3.
11. The Building Code requires that where low vapour permeance sheathing or
cladding is installed a vapour barrier with vapour permeance of not more than 15
ng/Pa.s.meter squared shall be used. What constitutes a low vapour permeance
sheathing or cladding and could you provide some examples?
The question is designed to test the candidate’s knowledge of building science,
i.e. the dynamics of a wall. It addressed the difference between vapour barriers
and vapour permeance and was looking for an undefined number of examples.
The question related to knowledge which Advisors need concerning small
building areas, or larger buildings or building sites under Part 5 of the Code.
There are no definitions for low vapour permeance sheathing or cladding found in
the Code, although examples are found in the Appendix. Both Dr. Arlani and Mr.
Antoniuk allocated 3 points for the definition and 3 points for examples.
The grievor received 2 points out of 6 from Dr. Arlani and 1 point out of 6 from
Mr. Antoniuk. The grievor did not give a definition, but looked in the Code
where it related to vapour barriers. After prompting, the examples he gave were,
stucco on Styrofoam, plywood, precast concrete and brick wall over Styrofoam.
Dr. Arlani gave him credit for plywood, which was part of the model answer, and
for Styrofoam as certain types of Styrofoam can meet the criteria. The grievor’s
example of brick veneer was wrong and his other examples depended upon their
physical components, which he did not give.
The Union submitted that the grievor was obviously confused, but as the question
was broad based, and the grievor gave a number of points, he should be credited
for giving 4 correct responses. The Employer submitted that since the grievor did
not give a definition, he did not show that he knew the criteria for low vapour
permeance sheathing or cladding. As a result, it was difficult to give the grievor
credit for the examples that he used, as they may or may not be considered low
permeance cladding or sheathing which depended upon its components.
As the grievor did not define low vapour permeance sheathing or cladding, he did
not answer the first part of the question. His example of a brick veneer was
wrong. By not being able to give the definition, nor the specific requirements for
the grievor’s examples that made them become low vapour permeance sheathing
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or cladding, he had not given a correct answer. The answer was potentially
correct, depending upon its constituent parts. However the grievor was not
prompted to determine whether he did understand or knew the basis for his
answer, which had been done in prior questions when a candidate had a correct or
potentially correct but incomplete answer. Therefore in this aspect, the treatment
of his answer was flawed.
In a comparative sense, Ben Pucci gave the most complete answer, having
checked the Code, given the definition and two examples, showed that he
understood the concepts. Ben Pucci received 4 points from Dr. Arlani and 6
points from Mr. Antoniuk. The grievor’s answer was more comparable to that of
Ann Reid’s who started at the same point in the Code, went to the Appendix, but
did not give any examples. Ann Reid was given 3 points by Dr. Arlani and 1
point by Mr. Antoniuk. Ann Reid and Kuntz’ comprehension appears
comparable. Ann Reid could give the definition but no examples, and the grievor
could give examples, which could be correct, if the context was correct but gave
no definition. As the grievor navigated the Code, and then gave answers, which
could have been correct, and he was not prompted for clarification, the assessment
process was flawed. As his answer was most comparable with Ann Reid’s and he
was not prompted, he ought to have been treated in the same way as Ann Reid.
12. There are no issues relating to this question as the grievor received full marks for
his answer.
13. As a code advisor, you receive a call from a CBO in a small township. She has a
two storey 600 square meter apartment building with two unenclosed exterior
exits stairs that serve the second floor. There are openings in the exterior wall on
the first floor of the building within 3 meters of the exits and she is asking whether
the openings are to be protected with wired glass?
The underlying concept to this question is a fire safety issue. The number of exits
is key to this answer. If there is more than one way for an occupant to exit in case
of fire, the windows do not have to be protected. Where there is only one exit for
the floors, under the Code, all the openings to the one exit have to be protected.
The grievor received 3 out of 6 from Dr. Arlani and 2 out of 6 from Mr. Antoniuk.
The grievor concluded that the windows did have to be protected. Dr. Arlani
found that the grievor was unable to interpret the Code. He went to the right
section of the Code, but did not make the distinction between one and two exits
for the second floor, and by not understanding that distinction, gave a wrong
answer. Dr. Arlani stated that the grievor would have been correct if he had
stated that there were only two apartments and each exit served only that
apartment.
Mr. Antoniuk gave the grievor credit for starting in the right section of the Code
and attempting to do the analysis, even though the analysis was wrong.
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The Union submitted that the building could be configured in two possible ways,
and as the grievor had given the correct solution for one of the configurations, he
was entitled to receive 6 points. The Union submitted that the letter, which the
grievor had obtained from the National Research Council, supported the grievor’s
answer. The letter contemplated two possible configurations to the building, one
of which supported the grievor’s answer. In further support, the Union submitted
that Mr. Antoniuk agreed that it was possible to have two configurations. The
Employer submitted that although the grievor looked to the correct section of the
Code he was unable to interpret the Code and therefore his mark should not be
changed. She submitted that the answer from the National Research Council
relied upon by the grievor was not relevant to the answer. The question did not
contain the restriction in access that the grievor was relying on.
The National Code answer posed two scenarios, in the first scenario, there are two
unenclosed exits serving more than one unit, in which case, the openings do not
need protection, and in the other situation, there are two exterior stairs, but each
exit serves only one unit, in which case the openings must be protected. Although
the grievor was relying on the second scenario, the question in the interview was
not directed to that scenario. The question specifically refers to two exterior exits
serving the floor. As this was not the situation given in the question, the National
Research Council responses do not assist the grievor.
There is no basis to change the marking of this question. This is not a situation in
which the grievor gave a correct but incomplete answer, which should then have
been prompted. The grievor did not answer the question correctly and he did not
make it clear that he understood the issue, and that he was answering in the
context of having only one exit. Therefore the assessment by the panel is not
flawed.
Written Question
The Union did not dispute the marking of this section and therefore the
Employer’s marks stand. Mr. Antoniuk marked the written response on its level
of communication, and Mr. Gryffyn marked the answer on its technical merit.
The grievor was given a score of 10 out of 10 on the technical portion and 8 out of
10 on communication. Ann Reid was scored 8 out of 10 on the technical portion
and 8 out of10 on communication. Ben Pucci was given 4 out of 10 on the
technical aspects and 10 out of 10 for communication.
Review of Competition #3
Competition #3 is subject to the same tests as set out for Competition #2. For
convenience, I repeat them. The role of the Board is to determine when ascertaining if
article 6.3 was breached:
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A. whether the interview process, which includes the nature of the questions and the
model answers, and how the questions were answered, was so fundamentally flawed that
the panel did not properly evaluate the candidates’ qualifications and abilities; and
C. whether the treatment of the various candidates in the interview process was
substantially inconsistent to the effect that the interview process was flawed in evaluating
the qualifications and abilities of the candidates.
The Union suggested that competition #3 was tainted by the Employer’s actions, as Dr.
Arlani marked on the initial screening document that there was no need to interview the
grievor as his previous interview would be considered. In the Union’s view, the
Employer was merely going through the motions of this interview as it had already
decided that the grievor was not suitable for the position.
The evidence does not bear out the Union’s position. The grievor, as all of the candidates
went through the same process. He was interviewed again, fresh questions were included
in the competition, the grievor’s answers were listened to and he was marked on his
responses. The Employer treated his responses as if he was a fresh candidate.
The Union claimed that the competition was flawed by the Employer’s failure to consider
and weigh outside information such as the grievor’s personnel file containing his
performance appraisal, speaking to the grievor’s supervisor, and reviewing and weight
the material he filed in this competition.
As in competition #2, the failure to look at outside sources was a significant flaw in the
procedure of the competition. My general comments in competition #2 on the
importance of outside sources to the assessment process is equally applicable to this
competition. However, as in the second competition, the evidence does not show, that
had the Employer duly considered this outside information, the result have been any
different. The grievor presented the same material to the panel. One item did touch on
Group B, Division 3 Care Occupancy, but did not demonstrate that the judgment of the
panel on question 8 in competition #3 was flawed, only that he had dealt with the issue.
This gives rise to the same considerations as his materials on vapour barriers. As the
materials provided dovetail with the information given at the interview, the assessment is
not fatally flawed for not having given it weight.
As in competition #2, the panelists used prompting to illicit further responses, to assist
the panelists. The comments that I made in competition #2 are equally applicable in this
competition. After reviewing all the grievor’s answers it was often unclear to me,
whether he knew the answer, or whether he stumbled on the correct answer, or whether
he knew the answer he was giving was limited to a few or exceptional cases. As the
evidence showed that he did not give context to many of his answers, the assessment of
the panel members was not shown to be flawed. As in competition #2, the panelists were
in the best position to judge whether or not a prompt is needed. The panel also appeared
to try to help the grievor by prompting him, whether to encourage him to give a more
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complete answer, or to refocus him on the appropriate area. As in the second
competition, it is the panel that can best react to the subtleties in responses. I do not find
that the Union was able to show that the use of prompting in this competition constituted
a fundamental flaw. Similarly there were no significant flaws in the assessment of a
candidate’s navigation of the Code in this competition.
The Union claimed that the failure to call the grievor and contact his references was a
flaw in the competition. The grievor claimed that he was never given the consent form to
contact his references, and he did not hand in a reference registration form. He
understood that he would be contacted if he was in contention for the position.
When reviewing the questions, the answers and the marking, and considering the
adjustments in the scores as discussed in this decision, the grievor did not meet the
minimum standard set by the Employer.
As in Competition #2, and as articulated in the Directive at D.4.2.4, references are not
used to bolster the information provided prior to the selection, but are used once the
selections are made among those in contention, to verify that the references are
satisfactory. As the grievor was not relatively equal to Ben Pucci or to Ann Reid, there
was no obligation to contact his references. As the Employer did contact the references
of the top three candidates, there is no flaw in this area.
The Union also challenged the selection of Ben Pucci in Competition #3 as he did not
meet the 50% criteria on the written portion. Although the Employer selected Ben Pucci,
who did not meet the criteria for the technical portion of the written question, this
selection does not make the standard unreasonable nor discredit the standard. Despite
only receiving 4 out 10 on the technical portion of the written answer, he nevertheless
received 81% in his overall score and well exceeded the Employer’s standard, in a
general sense. His scores indicated that he had the skills to handle the responsibilities of
the position even if he was weak in one area.
In addition, the grievor’s challenge to selecting Ben Pucci did not come from a position
that is supportable by the grievor. His situation was not that he met the Employer’s
criteria, and Ben Pucci did not. The grievor did not come within the 10 points of Ben
Pucci, the area which the panel had chosen as somewhat comparative and requiring
further analysis. The grievor’s qualifications and abilities were not relatively equal to
Ben Pucci. Therefore there was no error by the Employer choosing to select Ben Pucci,
rather than running another competition.
In summary, I find that the interview process including the consideration of all the
questions and answers, and the failure to consider the outside material was not so flawed
as to prevent the panel from properly evaluating the candidates’ qualifications and
abilities, and the treatment of the candidates was not so inconsistent that the competition
was fundamentally flawed.
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Finally the Union claimed that if the Union was unable to establish that the position was
to be filled on the basis of the grievor’s qualifications and abilities, the Union was
seeking to have the grievor receive the position in an underfill capacity.
This is not applicable in this instance. There is no basis in the collective agreement.
Further, under the Directives at D.4.5.1, an underfill assignment, that of placing a person
who was not fully qualified nor required to perform the full range and/or level of the
duties of the responsibilities for the established position, can only occur if: “the job
advertisement indicates that an underfill position will be considered” and “no fully
qualified candidates are found.
In both Competitions #2 and #3, there were no such advertisements and therefore these
positions cannot be filled in this way. As Dr. Arlani explained the decision to fill a
position in an underfill capacity is dependent upon whether there were qualified people to
do the job, and whether there was enough time to develop the staff member. From the
time of Competition #2, the Branch was going through new developmental activities, and
was in need of an Advisor to do the job with minimal supervision, which would be
contrary to filling the position by using an underfill assignment. No such assignments
were made during the period covering this grievance.
On the basis of the evidence and submissions made, the Union was not able to discharge
the burden on it to show that article 6.3 was violated in Competition #3.
Competition #1
Now that both competitions #2 and #3 have been reviewed, it is necessary to turn once
more to competition #1. Although the grievor was entitled to be interviewed on the basis
of the information contained in his resume, the issue is whether the Union proved on a
balance of probabilities that had he been interviewed, he would have received the
position.
In this case, the best evidence of the grievor’s qualifications and abilities, was his
interviews in Competitions #2 and #3, including consideration of his performance
appraisal and glowing comments from his supervisor, and the work samples that he took
to the interviews. I have found that neither competitions #2 or #3 were so fundamentally
flawed that it prevented the panels from assessing the relative qualifications and abilities
of the candidates. The scores which the grievor obtained as reflecting his qualifications
skills and abilities, by the panel, and adjustments made as a result of this hearing, did not
establish that he could meet the minimum standard set by the Employer. Furthermore, in
neither competition did the information and assessments support a conclusion that the
grievor was relatively equal to Doug Overbo. Therefore, there is no basis upon which to
conclude that had the grievor been interviewed that he would have likely on the balance
of probabilities met the Employer’s threshold, and that he was relatively qualified as the
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successful candidate Doug Overbo. Therefore the there was no violation of article 6.3 in
Competition #1. Therefore the grievance based on Competition #1 is dismissed.
In summary, after reviewing all the evidence and submissions of counsel, on a balance of
probabilities, I find that in competition #1, that:
1. the panel wrongly assessed the grievor’s resume and covering letter when
determining that he was marginally qualified and therefore not entitled to an
interview;
2. that the successful applicant, Doug Overbo, was eligible to be interviewed;
and
3. the qualifications and abilities of the grievor were not relatively equal to those
of Doug Overbo.
Therefore the Employer did not violate article 6.3 in competition #1 and this
grievance is dismissed.
After reviewing all the evidence and submissions of counsel, on a balance of
probabilities, I find that in competition #2, that although there were flaws in the
competition, such as failure to give weight to information that was available to the
Employer outside the interview process, and the failure to consider the material presented
by the grievor at the interview, and there were some flaws in the administration of the
interviews, that the Union did not prove on a balance of probabilities, that:
A the interview process including the nature of the questions and answers, outside
material and how the questions were answered was so fundamentally flawed that
the panelists did not properly evaluate the candidates’ qualifications and abilities;
B. the treatment of the various candidates in the interview process was substantially
inconsistent to the effect that the interview process was flawed in evaluation the
qualifications and abilities of the candidates; and
C. that if the defects were corrected, on the balance of probabilities the grievor
would have met the threshold set by the Employer which I have found reasonable
for this position.
Therefore the Employer did not violate article 6.3 in competition #2 and this grievance is
dismissed.
After reviewing all the evidence and submissions of counsel, on a balance of
probabilities, I find that in competition #3, that although there were flaws in the
competition, such as failure to give weight to information that was available to the
Employer outside the interview process, and the failure to consider the material presented
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by the grievor at the interview, and there were some flaws in the administration of the
interviews, that the Union did not prove on a balance of probabilities, that:
A the interview process including the nature of the questions and answers, outside
material and how the questions were answered was so fundamentally flawed that
the panelists did not properly evaluate the candidates’ qualifications and abilities;
D. the treatment of the various candidates in the interview process was substantially
inconsistent to the effect that the interview process was flawed in evaluation the
qualifications and abilities of the candidates; and
E. that if the defects were corrected, on the balance of probabilities the grievor
would have met the threshold set by the Employer which I have found reasonable
for this position, and have been relatively equal to the successful candidates.
Therefore the Employer did not violate article 6.3 in competition #3 and this grievance is
dismissed.
Finally I must emphasize that although I analyzed questions and answers of the
competitions in detail, it was not an attempt to second guess the panel, but to determine if
there was any basis to overturn the panel’s decision based upon the tests set out above. I
have found, upon the tests set out above, that there is no basis to overturn the panel’s
decisions.
A final comment
Due to the nature of the competitions, the technical nature of the work involved in the
position, and the numbers of issues, this arbitration required numerous days of hearing
extending over two years. The grievor had also launched other grievances, which the
parties agreed would be dealt with at this hearing. After five day days of hearing, a
mediation was held on October 25, 1999, during which the parties were able to resolve
several grievances that would otherwise have prolonged the hearing considerably. The
parties reached an agreement on a grievance dated June 2, 1993 on the issues of special
and compassionate leave, and a grievance dated December 26, 1996 for wrongful surplus,
discrimination and harassment. Although settlement was canvassed from time to time
during the arbitration process, the parties advised me that a settlement of the remaining
grievances was not possible.
From the outset of the hearing, the parties and counsel worked together to ensure that the
process was not unduly prolonged. They agreed that all the grievor’s grievances be heard
together, they cooperated in finding dates for the continuation of the hearing, they
reached settlement where it was possible and the witnesses and counsel were well
prepared for each day of hearing.
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I appreciate and thank counsel for their meticulous presentation of the material.
Dated at Toronto, this 7th day of May, 2002.
Belinda Kirkwood, Vice-Chair.