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HomeMy WebLinkAbout1998-1361.Kuntz.02-05-07 Decision ~M~ om~o EMPLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (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 Barnsters & Solicitors FOR THE EMPLOYER Hlroko Sawal Counsel Legal Services Branch Management Board Secretariat 2 Jim Tober Corporate Compensation Specialist Compensation Policy, Bargaining Units Management Board Secretanat Sunil Kapur, (on first day) Counsel Legal Services Branch Management Board Secretanat 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 3 DECISION The gnevor has been employed wIth the Mimstry 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 gneved 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 gnevances, WhICh are the subJect of thIS decIsIOn. The gnevor 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 Mimstry 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 Mimstry and would not be affected by thIS decIsIOn. The Position Dr Arlam, the Manager of Code Development and TraInIng SectIOn of the Mimstry of MumcIpal Affairs and HOUSIng, HOUSIng Development Branch, testIfied on behalf of the Employer Dr Arlam 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 onented. To assIst In the development and maIntenance of regulatIOns not requmng engIneenng expertIse" Dr Arlam testIfied that the AdvISor PosItIOn has three dIStInCt functIOns, Ontano 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 Inqumes a day WhICh Include Inqumes from the publIc, from the Internet sIte, from the BUIldIngs Code CommISSIOn ("BCC") and the BUIldIng Matenal EvaluatIOn CommIssIOn ("BMEC") mumcIpal bUIldIng officIals, fire officIals, engIneers, bUIlders, contractors and occasIOnally Members of ParlIament. The AdvISor receIves approxImately 15-20 Inqumes a day on the InterpretatIOn and applIcatIOn of the Code Although most of the requests for InformatIOn and clanficatIOn 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 Inqumes wIthIn five days The regulatory functIOn reqUIres analysIs of the Code and ItS regulatIOns, and of the NatIOnal or Amencan Codes and the IdentIficatIOn of problems In the Code The Branch 4 IS Involved In publIc consultatIOn and wIth wntIng 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 wntes all the courses and modIfies the courses on the Code It does traInIng for the delIvery of these courses to colleges, umversItIes, professIOnal orgamzatIOns such as those for engIneers, archItects or technologIsts In 1997 the branch had to rewnte fifteen courses to reflect changes to the 1997 Code Each AdvISor was responsIble for gIVIng two courses In Dr Arlam's VIew the posItIOn reqUIred a comprehensIve and current knowledge of the Code and related regulatIOn, and of the admInIstratIve protocol reqUIred by the Ontano BUIldIng Code Act. It also reqUIred extensIve expenence In bUIldIng desIgn and constructIOn, mImmum traInIng as a techmcIan, knowledge of bUIldIng matenals procedures and standards, commumcatIOn and analytIcal skIlls The posItIOn reqUIred a background In an area, such as In mumcIpal enforcement, pnvate sector desIgn firms, or work In other governmental agencIes that have worked wIth the Code It was al so necessary to have sound Judgment to deal wIth Inqumes wIthout exposIng the Branch to lIabIlIty The Competitions Dr Arlam had sat on over twenty competItIOns As a supervIsor he saw hIS role as analyzIng the posItIOn and ensunng that the cntena for selectIng the candIdates reflected the Job specIficatIOn and the Job postIng, and for ensunng that all the applIcatIOns were evaluated on the same cntena. 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 restncted to Ontano PublIc ServIce employees Dr Arlam 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 5 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 MSG 2ES no later than Nov 8 1996 Fourteen people applIed for the posItIOn, IncludIng the gnevor The Employer dId not send the gnevor a letter of acknowledgement of hIS applIcatIOn, but hIS applIcatIOn was stamped as receIved and was consIdered. Dr Arlam asked two AssIstant Managers, Mr John Gryffyn and Mr Alec Antomuk to assess the resumes Mr Antomuk has been the AssIstant Manager of HOUSIng and Development Branch, an aSIde to the Code Umt of the Code Development and TraInIng sectIOn SInce 1989 when he JOIned the Mimstry and was responsIble for Code InterpretatIOns Mr Gryffyn was also another AssIstant Manager In the department, who reported to Dr Arlam Mr Antomuk prepared the cntena and screemng sheet for reVIeWIng the resumes The resumes were assessed agaInst four categones, bUIldIng desIgn and constructIOn expenence, techmcal expenence knowledge of the BUIldIng Code and knowledge of bUIldIng and standards Mr Antomuk and Mr Gryffyn scored the resumes IndIVIdually and then met wIth Dr Arlam to determIne who should be IntervIewed. Mr Antomuk and Mr Gryffyn rated the applIcants on the basIs of theIr resumes Into three categones, qualIfied, margInally qualIfied, and not qualIfied. They consIdered eIght of the applIcants as qualIfied, four as margInally qualIfied, and two as not qualIfied. The gnevor 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 gnevor The IntervIew panel was composed of Dr Arlam, Mr Gryffyn, Mr Antomuk and Mr Jim Tober from Human Resources The Chair of the panel was Dr Arlam The panel IntervIewed Albert Charnon, BIll HamIlton, Norm KevIl ovskI , ChnstIne Mak, Michael Ng, Doug Overbo Mr Mano 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 wntten component, WhICh took an addItIOnal hour Dr Arlam set the 6 standard for choOSIng the successful candIdate at 50% for the commumcatIOns aspect and 50% on the techmcal aspect In the wntten component, and 70% overall on the IntervIew and wntten 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 wntten 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 matenal dIfference In thIS from the Job postIng for the first competItIOn. There were ten applIcants, IncludIng the gnevor As In the prevIOUS competItIOn, the two AssIstant Managers revIewed the resumes agaInst the cntena establIshed by Mr Antomuk. They dId not weIgh the categones, but looked to see If the applIcants substantIally met the qualIficatIOns They then met wIth Dr Arlam 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 gnevor 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 wntten component. The wntten portIOn was revIewed by Mr Gryffyn for ItS techmcal ment, and by Mr Antomuk for commumcatIOn skIlls The IntervIew portIOn was worth 80 pOInts and the wntten portIOn 30 pOInts, for a total of 110 pOInts The cntena for the second competItIOn was to have an overall score of 70%, wIth 50% on the techmcal aspects and 50% for the commumcatIOn aspects In the wntten 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 wntten 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 wntten assIgnment. The Employer dId not have the gnevor's consent and reference form There was no eVIdence that any references were called. 7 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 sconng. The scores were then averaged. The panelIsts ranked the candIdates, on the basIs of 110 pOInts In the IntervIew and wntten portIOn, In the folloWIng order after averagIng the scores, first BIll HamIlton (685 pOInts, WhICh Included a score of 10 out of 10 In the techmcal portIOn and 15 out of 20 for commumcatIOn skIlls), second the gnevor (5075 pOInts WhICh Included 0 out of 10 In the techmcal portIOn and 15 out of 20 for commumcatIOn skIlls) and thIrd GallIna Platus (45.25 pOInts, WhICh Included 5 out of 10 In the techmcal portIOn and 12 out of20 for commumcatIOn 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 pnvate 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 Ontano PublIc ServIce Employees The panel receIved twenty-five applIcatIOns In thIS competItIOn, Dr Arlam gave Mr Antomuk and Mr Gryffyn the task of vettIng the resumes Dr Arlam then revIewed them agaInst an expanded cntena, WhICh was stIll related to the Job postIng and the posItIOn. ImtIally as the gnevor was the only candIdate In thIS competItIOn who had also applIed In the second competItIOn, Dr Arlam was gOIng to use the same questIOns, and rely on the gnevor's IntervIew scores However on the advIce of Human Resources, he decIded to change the questIOns, and decIded that It was not appropnate to use the gnevor's prevIOUS results The panel decIded to IntervIew the gnevor Mr Tober was no longer on the selectIOn panel The IntervIews were conducted on December 16 1998 wIth the exceptIOn of the gnevor'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 wntten portIOn was worth 20 pOInts, WhICh was added to create the final score The threshold was agaIn 70% overall, and the wntten assIgnment was worth 50% for techmcal skIll and 50% for commumcatIOn skIlls The panel decIded that If there were Internal candIdates wIthIn ten marks of each other they would scrutImze them carefully and hold more IntervIews If necessary 8 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 sconng was done In the same manner After the candIdates were IntervIewed, Mr Antomuk gave them the wntten 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 Arlam, 64 pOInts by Mr Antomuk, and 66 pOInts by Mr Gryffyn on the IntervIew WhIch averaged was 645 pOInts for a total score IncludIng the wntten portIOn, of 81 5 pOInts out of 100 Ann ReId was gIven 68 pOInts by Dr Arlam, 58 pOInts by Mr Antomuk, and 67 pOInts by Mr Gryffyn, on the IntervIew WhIch averaged was, 64 5 pOInts for a total score IncludIng the wntten portIOn, of 80 5 pOInts out of 100 Ben PUCCI was gIven 65 pOInts by Dr Arlam, 68 pOInts by Mr Antomuk, and 66 pOInts by Mr Gryffyn on the IntervIew WhIch averaged was 66 3 for a total score IncludIng the wntten portIOn of 80 3 pOInts out of 100 The gnevor who placed last, after Gary Dolch and BIll Stamatopoulous was gIven 45 pOInts by Dr Arlam, 38 pOInts by Mr Antomuk, and 38 pOInts by Mr Gryffyn, on the IntervIew WhIch averaged was 405 pOInts, for a total score IncludIng the wntten portIOn of 58 5 pOInts out of 100 Pnor to makIng any Job offers, Dr Arlam called Doug Durham's and Ben PUCCI'S references and Mr Antomuk 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 Umon counsel submItted that the overndIng pnncIple applIed In the selectIOn of a candIdate In aJob competItIOn, IS that semonty prevaIls, and It IS only If the qualIficatIOns and abIlItIes of the Jumor employee prevaIl over that of the semor employee by a substantIal margIn, can the Jumor employee be awarded the posItIOn. In support of thIS proposItIOn, Umon counsel relIed on the decIsIOn ofOPSEU (Sauve) May 3 1993 (Gray). Umon counsel further argued that thIS decIsIOn best sets out the cntena and case law as It relates to Job competItIOns In partIcular It revIews the cntena as set out In De Grandis GSB 506/81 (Samuels) at page 21 9 The JunsdIctIOn of thIS Board has establIshed vanous cntena 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 vanous 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 Umon's counsel submItted that the procedure used In these competItIOns dId not follow these prIncIples and therefore were fundamentally flawed. In partIcular Umon counsel argued that a) the panel dId not consIder any factors outsIde the IntervIew process, and faIled to gIve weIght to outsIde expenence The gnevor had substantIal expenence In the reqUIred field, b) the panel faIled to consIder any performance appraisals, or any of the personnel files, contrary to the Mimstry's DIrectIves and GUIdelInes and c) the panel faIled to consIder the gnevor's evaluatIOn by hIS supervIsor WhIch IndIcated that the gnevor had excellent knowledge of the BUIldIng Code, as reqUIred for thIS posItIOn. The Umon 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 Umon's counsel argued that the faIlure to reVIew the personnel files and performance appraisals pnor to the IntervIews was a flaw In the process The 10 Gnevance Settlement Board has found competItIOns flawed, where they were not assessed by all the members of the selectIOn commIttee Umon's counsel submItted the faIlure of the selectIOn panel to consIder and gIve weIght to the gnevor's prevIOUS Job expenence and performance appraisals was a flaw In these competItIOns Umon 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 sconng 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 techmcal 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 attnbuted to the number of examples sought In some of the questIOns The result was that the gnevor 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 cntena and the process to be applIed to the degree that Mr Antomuk dId not know the standard that was to be applIed overall Umon counsel submItted that the markIng of the gnevor's IntervIew was flawed and the gnevor deserved more pOInts The Umon submItted that the applIcatIOn of the Employer's standards was flawed. WhIle the Employer has the nght to establIsh the mImmum standards, there was no eVIdence that the standard set by the employer eIther the 70% threshold overall or the 50% reqUIred on the techmcal and commumcatIOn aspects on the wntten assIgnment, was necessary or reasonable Umon's counsel submItted, In addItIOn to these flaws, each Job competItIOn had addItIOnal flaws In CompetItIOn #1 the Employer faIled to acknowledge the gnevor's applIcatIOn. 11 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 Mimster 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 Umon's counsel submItted that the Employer went outsIde the area of search and breached ItS screemng process Therefore the Employer faIled to follow ItS DIrectIve on the area of search, WhICh was unfair to the candIdates Umon's counsel also argued that had the Employer followed ItS DIrectIve at D4.2 2 to forward the Job postIng to the deployment umt, to deterrlllne first If there were any surplus employees, It would have led the Employer to the gnevor's letter of November 25 1996 to Carol Evans the Semor Human Resource AdvISor In WhICh the gnevor specIfically noted hIS surplus posItIOn and hIS applIcatIOn to the recently posted posItIOn of AdvISor and hIS reference to hIS expenence In the BUIldIng Code branches Umon's counsel argued that Henry WaIn and Doug Overbo and the gnevor had the same posItIOn or classIficatIOn from at least 1992 to 1996 Umon's counsel argued that the gnevor's formal educatIOn and expenence 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 expenence as a draftsman, whIle the gnevor had practIcal expenence as an ArchItectural TechnologIst, a Plans ExamIner and Roofing SpecIalIst WhIch reqUIred complIance wIth the Code, the standards and bylaws In addItIOn, the gnevor had the same background as Plans ExamIner as dId Mr MondIsor whose departure had created the vacancy Therefore the gnevor ought to have been granted an IntervIew as were Henry WaIn and Doug Overbo The Umon submItted, although Dr Arlam was concerned that the gnevor's Code expenence was not current, the Mimstry GUIdelInes say to aVOId recent expenence unless the posItIOn has changed radIcally The gnevor brought Code expenence 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 sIgmficant, as Dr Arlam testIfied that anyone In the posItIOn would be heavIly momtored for a penod of one to four months AccordIngly the Umon submItted that as the gnevor was qualIfied to do the Job and was relatIvely equal to Doug Overbo on the basIs of the gnevor's semonty the gnevor 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 gnevor the posItIOn was due to the Employer's error In CompetItIOn #2, the Umon argued that, the gnevor should have receIved the posItIOn as the qualIfied person, and alternatIvely In an underfill capaCIty 12 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 Arlam 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 gnevor was not gIven due consIderatIOn In thIS competItIOn. FIrst, the panel dId not comment on hIS qualIficatIOns at the screemng process Secondly the questIOnnaire contaInIng Mr Gryffyn's scores dId not contaIn any notes, WhICh thereby calls the senousness of hIS consIderatIOn of the candIdates Into questIOn. ThIrdly as a result of the errors In markIng the questIOns, Umon's counsel submItted that the gnevor had sufficIent scores to award hIm the posItIOn. The Umon was further depnved of an opportumty to examIne Mr Tober Umon's counsel submItted that If the competItIOn was too flawed and It was not possIble to award the gnevor the competItIOn, as the competItIOn was a restncted competItIOn, that the competItIOn be rerun. Umon's counsel submItted that CompetItIOn #3 was taInted from the begInmng when Dr Arlam ImtIally decIded that the panel dId not need to IntervIew the gnevor The Umon 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 gnevor the posItIOn. The comments made on the sconng sheet supports the perceptIOn of the gnevor that the Employer was gOIng through the motIOns and was not treatIng the gnevor's applIcatIOn anew Umon's counsel argued agaIn that the markIng of the IntervIew questIOns was flawed. On the Umon's assessment of the scores on the IntervIew alone, the gnevor should be ahead of the other candIdates Umon counsel argued that on a proper assessment, the gnevor should have receIved 63 pOInts, as compared to 68 for Ann ReId and 65 for Ben PUCCI Therefore Umon counsel submItted that scores show that the gnevor was relatIvely equal to the other candIdates and therefore should have been awarded the posItIOn on the basIs of the semonty cntena In the collectIve agreement, and as the only Internal candIdate Umon'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 techmcal aspects of the wntten portIOn, when he scored 4 out of 10 WhICh In the Umon'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 mImmum reqUIrements The Umon argued that as the Board has the JunsdIctIOn to award the posItIOn, and has before It eVIdence other than that WhICh the selectIOn commIttee revIewed, It IS capable of deterrlllmng If the gnevor had the qualIficatIOns and abIlIty at the tIme The Umon agaIn relIed on Sauve at pages 38/39 arguIng that the gnevor 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 13 successful candIdates would have gaIned expenence and knowledge from workIng In the posItIOn sInce the competItIOn. Umon's counsel submItted that If the Employer was wrong In eIther of the first two competItIOns, the appropnate remedy was to place the gnevor In the posItIOn and not rerun the competItIOn. Furthermore, as the thIrd competItIOn was not restncted to Ontano PublIc ServIce Employees, It was not appropnate to rerun the competItIOn. Employer Argument Employer's counsel argued that as In OPSEU Bent and The MinistlY of Transportation GSB #1733/86 (Fisher) In WhICh the Board found a number of defects, IncludIng Improper sconng and a faIlure to do a reference check, It IS not enough for the Umon to find defects, but the onus IS on the Umon to show on the balance of probabIlItIes, that had the defects not occurred, the gnevor was relatIvely equal to the other candIdates Employer's counsel submItted, that although there may have been some defects In these competItIOns, the Umon has been unable to prove on a balance of probabIlItIes that had the defects not occurred that the gnevor was relatIvely equal to the successful candIdates Employer's counsel agreed that the Sauve case set out the cntena used by the Board In the assessment of Job competItIOns However Employer's counsel argued that the decIsIOn of Alam and The MinistlY 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 senous 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 MinistlY 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 sconng, 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 cntena WhICh Mr Antomuk used to create the screemng sheet for the qualIficatIOns, was dIvIded Into the four categones, I) bUIldIng desIgn and constructIOn, 11) techmcal knowledge, 111) 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 appropnate 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 techmcal nature The standard was reasonable In lIght of the 14 responsIbIlIty of the posItIOn, the expertIse reqUIred of the posItIOn, the necessIty to respond to most Inqumes 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 appropnate 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 gnevor'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 gnevor was Improperly demed an IntervIew and whether the results were InvalId as the successful candIdate Doug Overbo dId not meet the cntena reflected In the area of search. Employer's counsel submItted that If a candIdate falls to proVIde suffiCIent InformatIOn on theIr resume, It IS the candIdate and not the Employer who IS to blame The gnevor 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 Mimstry as an ArchItectural TechnologIst, and had descnbed specIfic Jobs that he had done In the pnvate and publIc sectors In hIS resume, WhICh IndIcated hIS level of expertIse Employer's counsel submItted that on the other hand, the gnevor faIled to proVIde InfOrmatIOn In hIS resume to support hIS level of skIlls and abIlIty Mr Antomuk was not convInced from the gnevor's resume that the gnevor had knowledge of the BUIldIng Code and knowledge of bUIldIngs and standards He had testIfied that the gnevor's tItles of 'ArchItectural TechnologIst' and 'Roofing SpecIalIst' dId not convey the level of knowledge the gnevor had attaIned. The gnevor'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 gnevor'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 gnevor's resume dId not show current knowledge of the Code 15 Employer's counsel argued that even though the gnevor 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 gnevor'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 Antomuk and Mr Gryffyn on the basIs of the same recrUItIng worksheet, before dISCUSSIng the results wIth Dr Arlam 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 gnevor was properly categonzed 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 restnctIOns of "WIthIn 40 kIlometers" or at a specIfic locatIOn, the desIgnatIOn of "WIthIn commutIng dIstance" IS not an effectIve screemng tool Dr Arlam had testIfied that thIS descnptIOn 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 gnevor was Improperly demed an IntervIew he was not relatIvely equal to the successful Incumbent, Doug Overbo The gnevor's scores In the other two competItIOns that followed shortly thereafter and were sImIlar to the first are reasonable IndIcators of the gnevor's skIlls and abIlItIes His scores were far below those of Doug Overbo The gnevor scored less than 50% In CompetItIOn #2 havIng receIved 5075 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 410ut 50 on the wntten portIOn, WhICh gave an overall score of 81% to 82% Employer's counsel argued that the gnevor 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 gnevor 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 gnevor was screened out Improperly It was not necessary In thIS case as there are other IndIcators of hIS skIlls and abIlItIes The gnevor has been IntervIewed twIce and has not been able to obtaIn the mImmum 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 Umon was not able to show on the balance of probabIlItIes that had the defects In the competItIOn process not occurred, that the gnevor would have been relatIvely equal to the other candIdates, and therefore would have been entItled to the posItIOn as a result of hIS semonty Even If the panel had spoken to the gnevor'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 Gnevance Settlement Board recogmzed that a competItIOn can be cancelled If there are bona fide reasons for dOIng so As there were no candIdates that fulfilled the cntena, It was appropnate and reasonable to cancel the competItIOn. AccordIngly thIS gnevance ought to be dIsmIssed. Employer's counsel conceded that Dr Arlam 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 com petI tIOn, the Branch was gOIng through developmental and restructunng 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 Umon. She submItted that the gnevor 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 appropnateness of the questIOns and the dIfficulty WIth tIme management and the Employer's general approach. With respect to partIcular complaInts by the Umon a. Contrary to the Umon'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 answenng the questIOn and was prompted and then gets the nght 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 answenng 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 Gnevance Settlement Board IS generally reluctant to Interfere WIth competItIOns where the scores were not matenal to the final result (Alam Bent decI sIOns) Although the Employer dId not rely on any personnel files, the Umon dId not bnng forward any matenal to support ItS pOSItIOn to show that the gnevor was qualIfied to perform the Job Employer counsel submItted that In CompetItIOn #3 the Umon dId not dIspute the sconng of the wntten test. Although Ben PUCCI dId not score 50% on the wntten test, hIS overall mark was 803%, WhICh was well In excess of the 70% threshold. Dr Arlam 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 gnevor 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 gnevors' qualIficatIOns and abIlItIes to do the Job and therefore In those cIrcumstances, It would be Improper to award the pOSItIOn to one of the gnevors 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 techmcal 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 vacanc, occurs III the ClassIfied ServIce for a bargaIllIllg umt pOSItIOn or a new claSSIfied pOSItIOn IS created III the bargaIllIllg umt, It shall be advertIsed for at least ten (10) workIllg days pnor to the establIshed clOSIllg date when advertIsed WIthIll a mIllIstn or It shall be advertIsed for at least fifteen (15) workIllg days pnor to the establIshed clOSIllg date when advertIsed servIce-wIde All applIcatIOns will be acknowledged. Where practIcable notIce of vacanCIes shall be posted on bulletIll boards 18 6.3 1 In filhng a vacanc, the Employer shall gIve pnman consIderatIOn to quahficatIOns and abIht, to perform the reqUIred dutIes Where quahficatIOns and abIht, are relatIveh equal, semont, shall be the decIdIllg factor 20.5 1 An employee who has receIved notIce of la, -off III accordance WIth thIS artIcle shall be assIgned to a pOSItIOn that becomes vacant III hIS or her mIllIstn dunng hIS or her notIce penod provIded that: (a) the vacant pOSItIOn IS m the same classIficatIOn as hIS or her pOSItIOn, (b) the vacant pOSItIOn IS WIthIll a fort, (40) kllometre radms of hIS or her headquarters and (c) he or she IS mImmalh quahfied to perform the Job thIS IS defined as 'the abiht, to do the Job at entn level and (d) there IS no other person quahfied to perform the reqUIred dutIes, who has a greater length of contmuous servIce and who IS ehgible for aSSIgnment to the vacanc, pursuant to ArtIcle 20.5 or ArtIcle 20 6 (Recall) Decision The Umon has alleged that the Employer has VIOlated artIcle 6 3 of the collectIve agreement by faIlIng to award the gnevor the pOSItIOn In each of the three Job competItIOns The Umon argued that the gnevor beIng relatIvely equal to the other candIdates, the gnevor ought to have receIved the pOSItIOn as the most semor candIdate As there are a mynad 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 Umon's claims The essence of the gnevor's claims as expressed by the Umon are 1 The gnevor claims that he should have receIved the pOSItIOn from the first competItIOn as he was the semor 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 gnevor 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 gnevor 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 semonty 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 gnevor's resume and covenng 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 gnevor's qualIficatIOns and abIlItIes relatIvely equal to Doug Overbo's, In WhICh case the gnevor was entItled to the posItIOn on the basIs of hIS semonty The best eVIdence that was before the Board to determIne the gnevor's qualIficatIOns and abIlItIes were the results of two subsequent competItIOns that he applIed for consIdered. As the Umon challenged those competItIOns as not properly recogmzIng hIS qualIficatIOns and abIlItIes, the resolutIOn of those challenges have to be first determIned before resolVIng the Issues ansIng 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 Umon? 2 If so dId the flaws affect the outcome of the assessment? ThIS second questIOn raises the folloWIng Issues i. Were the flaws so sIgmficant 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 appropnate 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 11 Were the flaws not sIgmficant or could they could be corrected or corrected to the degree In the reVIew process that It remaIns possIble to deterrlllne the qualIficatIOns and relatIve abIlItIes of the candIdates If thIS IS the case, and the Umon IS able to prove that absent the flaws, or havIng corrected the flaws, the gnevor has the qualIficatIOns to perform the Job the gnevor would be entItled to the posItIOn as the semor candIdate 20 ThIS IS the framework WhICh I belIeve IS necessary to consIder competItIOns #2 and #3 The pnncIples for resolvIng these gnevances 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 semor candIdate The Board has consIstently Interpreted artIcle 63 and ItS predecessor artIcle 43 as recogmZIng the pnonty of the semor candIdate wIth the qualIficatIOns and abIlItIes to do the Job to the degree that "the appoIntment of the Jumor of two qualIfied applIcants IS only appropnate If the qualIficatIOns and abIlItIes of the appoIntee exceed those of the semor applIcant by a substantIal and demonstrable margIn" (Sauve at page 18) Therefore, If the candIdates are relatIvely equal, the Employer must select the semor candIdate However elImInatIng any Issue of over-qualIficatIOn for the posItIOn, WhIch IS not relevant to thIS decIsIOn, If a Jumor person has demonstrably better abIlItIes to perform the reqUIred dutIes of the Job and IS IdentIfiably supenor to the other candIdates, the Employer IS entItled to select that person over the semor employee The cases referred to by both counsel are not at odds, but work In harmony wIth each other and artIculate the cntena 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 cntena 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 vanous 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 qualIfi catIons 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 recogmzes 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 semor candIdate wIth the qualIficatIOns and abIlItIes was not selected. As the Sauve decIsIOn holds, In folloWIng the Bent decIsIOn, the onus IS on the Umon to establIsh on a balance of probabIlItIes that had the defects In the Job competItIOn not occurred, the gnevor beIng semor 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 Ontano DIvIsIOnal Court reJected the Employer's argument that the Board was lImIted to ordenng a rerun of the competItIOn. The DIvIsIOnal Court upheld the power of the Board to appoInt a gnevor 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 gnevances It IS necessary to analyze the competItIOns, and to determIne If there are flaws, as alleged by the Umon, and If so If the flaws had not occurred, was the gnevor as the semor 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 Gnevor 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 gnevor 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 Charnon 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 cntena, the chOIce of the area of search, advertISIng methods, responsIbIlItIes of the selectIOn commIttee, and the screemng 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 gnevor'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 mImmum 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 runmng" even if everything claimed in his or her job application lJ,ere 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 semor 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 Umon 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 descnbed the area of search as "wIthIn commutIng dIstance of Toronto" Dr Arlam testIfied that It was hIS belIef, that to restnct the Job search as posted, was to ensure that the Mimstry would not be lIable for any commutIng or relocatIOn expenses Doug Overbo agreed that the Mimstry would not be responsIble for hIS expenses and no expenses were paid to hIm. Dr Arlam'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 penmeter ThIS was the lImItatIOn that was removed by letter of November 26 1999 as referred to by the Umon, not the broader area of search expressed In thIS Job postIng. On the other hand, the GUIdelInes pOInt out the dIfficulty wIth defimng the area of search broadly as "WIthIn commutIng dIstance" as ambIguous, dIfficult to apply conSIstently and open to the nsk of attractIng relocatIOn expenses The GUIdelInes recogmze that It IS not very effectIve as a screemng mechamsm, 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 appropnate 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 gnevor's applIcatIOn, WhICh was composed of hIS resume and covenng letter conveyed suffiCIent InformatIOn for the panelIsts to deterrlllne that he was one of the qualIfied candIdates and therefore entItled to be IntervIewed. The fundamental reason for the gnevor beIng consIdered margInally qualIfied and InelIgIble for the IntervIew was that both Mr Gryffyn and Mr Antomuk belIeved he dId not have current knowledge of the Code and of bUIldIng standards Dr Arlam 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 gnevor's covenng 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 dally 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 Mimstry desIgn standards, and had prepared and revIewed remedIal proJects for non-profit and HOUSIng Authonty bUIldIng retrofits ThIS expenence 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 Mimstry desIgn standards Although the Employer took the posItIOn that the gnevor's knowledge and expenence 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 expenence 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 matenals and standards, far beyond roofing matenals, as the Employer contended. If there was any doubt that the gnevor dId not have had knowledge and expenence wIth the Code and wIth bUIldIng standards and matenals, 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 cntena chosen by Mr Antomuk 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 appropnate 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 Mimstry programs on publIc hOUSIng. The AdvISor posItIOn IS focused more on IndIVIdual Issues and looks at Code Issues as questIOned by mumcIpalItIes 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 gnevor on hIS resume, when Mr Gryffyn marked "no" to the gnevor's knowledge of the Code, and questIOned hIS knowledge of matenal and bUIldIng standards, and when Mr Antomuk's questIOned both 25 of these categones, and then consIdered the gnevor margInally qualIfied and not elIgIble for an IntervIew Furthermore, the Employer dId not assess the InformatIOn In the gnevor's applIcatIOn on the same basIs as the other candIdates Both ChnstIne Mak and Michael Ng were IntervIewed, even though one assessor marked them has havIng no knowledge In bUIldIng desIgn and standards In the screemng 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 gnevor's expenence was questIOned, and could have been clanfied In the IntervIew The gnevor was also treated dIfferently from Henry WaIn and Albert Charnon, whose background as ArchItectural TechnologIsts was consIdered sufficIent groundIng for an IntervIew The gnevor's career pattern also bore a sImIlanty 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 gnevor In hIS capacIty as a Plans ExamIner on a complex proJect at 555 The Esplanade, that Involved three layers of underground parkIng, a hIgh nse medIUm town houses wIth commercIal and office bUIldIngs at grade, and an Inner court. In summary although the Employer has the nght to set reasonable cntena for IntervIeWIng candIdates, on theIr own cntena, It was not reasonable to elImInate the gnevor from the qualIfied pool The gnevor's resume and covenng letter met the basIc cntena establIshed by the panel On ItS face, the gnevor's resume and covenng 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 matenals, or knowledge of the Code could be canvassed In the IntervIew process The Right to the Position Although the gnevor's background as a Plans ExamIner a Roofing SpecIalIst and then as an ArchItectural TechnologIst provIded hIm wIth the background that met the cntena for an IntervIew for the posItIOn, It IS stIll InSUfficIent In Itself to award hIm the posItIOn on the basIs of hIS semonty The onus remaInS on the Umon to show that had the gnevor 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 pnmary consIderatIOn to qualIficatIOns and abIlIty to perform the reqUIred dutIes" In eXerCISIng that prerogatIve, the Employer has the nght 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 wntten questIOns, and 50% on each of the techmcal and commumcatIOn aspects of the wntten answers Contrary to the Umon's posItIOn that there was no eVIdence that thIS standard was reasonable, Dr Arlam testIfied that thIS standard was used In hIS area when asseSSIng and testIng candIdates on courses ConsIdenng the publIc, mImstnes, and vanous 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 techmcal and commumcatIOn aspects IS supported, IS reasonable, and IS WIthIn the Employer's nghts under ArtIcle 6 3 The Basis for The Grievor's Qualifications and Abilities The only InformatIOn that the Umon was able to provIde relatIve to the tIme In questIOn, to support the gnevor's posItIOn that he had the necessary qualIficatIOns and abIlItIes, was the InfOrmatIOn provIded In the gnevor's resume and covenng 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 necessanly have met the standards set by the Employer and have been the successful candIdate In the competItIOn had he been IntervIewed. The gnevor 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 gnevor would have been qualIfied for the posItIOn and relatIvely equal to Doug Overbo who had receIved the Job In the second competItIOn, the gnevor receIved 50 75 out of 110 pOInts, WhICh IS less than 50% for the overall score for the IntervIew and wntten questIOn, and 58 5% on the thIrd competItIOn. These scores do not suggest that he was as qualIfied as Doug Overbo The gnevor' s scores were below the standard that the Employer had set as a threshold for the posItIOn. RecogmzIng that Doug Overbo was tested on dIfferent questIOns, nevertheless, Doug Overbo's scores were substantIally supenor to the gnevor's scores on the second and thIrd competItIOn, as hIS overall score was between 81% to 82% Therefore, It rests on the Umon to show that the Umon that the second and thIrd competItIOn was eIther so flawed that It could not measure the gnevor's skIlls and abIlItIes, In WhICh case It IS up to thIS Board to determIne If those flaws were corrected, that the gnevor'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 Umon 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 63 However In thIS case the only way that the Umon could demonstrate that the gnevor was relatIvely equal to the other candIdates, was to reVIew each questIOn and ItS sconng 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 memones, In thIS competItIOn the documents were complete, other than as noted, and the memones of the wItnesses were unfaltenng and complete In addItIOn, as the Board has the power to place a gnevor 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 gnevor 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 cntena 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 cntena. Dr Arlam clearly IdentIfied and related the elements reflected In the Job PostIng to those set out In the Job SpecIficatIOn. SImIlarly the four cntena chosen by Mr Antomuk for asseSSIng the resumes were dIrectly related to the Job PostIng and the Job SpeCIficatIOn. The questIOns chosen for the IntervIew were based upon techmcal reqUIrements for the posItIOn, and the wntten portIOn was taken from Inqumes made of AdvISorS In the performance of theIr Jobs The Umon dId not dIspute the cntena 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 appropnately related to the Job posItIOn. 28 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 companson. The Umon challenged the methodology used by the Board In several respects It challenged the selectIOn ofMr Tober who was from Human Resources and dId not have the techmcal background of the other IntervIewers, the relIance on model answers, the lack of clanty 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 concermng 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 techmcal 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 maJ or oversIght, but retaIn an Independent assessment. The process of makIng IndIVIdual assessments and then averagIng the scores, takes the vanatIOns In the perceptIOns by the panelIsts of the vanous candIdates, and IS a fair and reasonable method of sconng. 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 sconng 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 techmcally competItIOn member of the selectIOn commIttee to hear the VIew of hIS colleagues but stIll exercIse hIS own 29 Judgment when It comes to sconng. ObvIOusly when a companson IS made between the scores of IndIVIdual claimants It IS appropnate and Indeed proper to average the scores of the selectIOn commIttee so that a proper companson can be made Therefore the InclUSIOn of Mr Tober In the panel was not a flaw as suggested by the Umon, 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 Umon submItted that It was a flaw In the competItIOn for Dr Arlam to gIve pOInts for navIgatIng the Code, and Mr Antomuk 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 appropnate In the CIrcumstances Competition #2 Interviews As mentIOned In the facts, In thIS competItIOn, Mr Antomuk and Mr Gryffyn dId the ImtIal screemng 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 gnevor GallIna Platus and BIll HamIlton were the only applIcants IntervIewed. Dr Arlam 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 techmcal and 30% were desIgned to test commumcatIOn skIlls and broader knowledge of the Industry The IntervIew also Included a wntten component In WhICh the candIdate was to gIve an OpInIOn on a questIOn WhICh was taken from one of the questIOns asked of the Mimstry Mr Antomuk was to test the grammatIcal abIlItIes In the wntten portIOn and Mr Gryffyn was to mark for techmcal 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 wntten 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 H OYf, 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 knoYf, ledge 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 sconng of questIOns 1 and 16 are tIed together the final assessment of thIS questIOn wIll be dealt wIth In questIOn 16 The gnevor 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 Arlam gave the gnevor 7 pOInts out of lion hIS background InformatIOn, but dId not gIve a hIgher score, as he was concerned wIth the gnevor's knowledge on the updated BUIldIng Code The gnevor agreed that he dId not have as much expenence wIth the updated Code, SInce he was surplused In 1990 however as expressed earlIer that dId not mean that he had no expenence wIth the current Code The gnevor's covenng letter stated that he had extensIve work expenence 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 Mimstry desIgn standards, and that he prepared and revIewed remedIal proJects for Non-Profit and HOUSIng Authonty bUIldIng retrofits These were noted by Dr Arlam 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 gnevor would have had to have current knowledge of the Code Therefore the gnevor's resume, and covenng letter show that he had current knowledge of the Code and he should have been gIven credIt for It. Mr Antomuk In general was not as generous wIth hIS scores as was Dr Arlam Mr Antomuk had low scores for all three candIdates for thIS questIOn, 5 for BIll HamIlton, 4 for GallIna Platus, and 3 for the gnevor Mr Antomuk only gave 3 pOInts to the gnevor In response to thIS questIOn and questIOn 16 as he also belIeved that the gnevor was lackIng In current Code expenence He was of the VIew that the other candIdates were more closely matched for the Job Although the gnevor's expenence had not changed by the thIrd competItIOn, Mr Antomuk gave hIm 7 pOInts for hIS response In that competItIOn, on the basIs that the gnevor gave a more detaIled VIew of hIS background. 31 There IS an onus on the candIdate to provIde as much relevant InformatIOn on hIS resume and covenng 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 gnevor 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 gnevor gave more InformatIOn on hIS expenence as a constructIOn manager of 189 resIdentIal and commercIal umts for Bramalea, WhICh In Mr Antomuk's VIew demonstrated that he knew how bUIldIngs were put together had expenence updatIng standards for the Mimstry and had sIgmficant expenence In roofing. These expenences demonstrated to Mr Antomuk that the gnevor had the abIlIty to analyze and develop OpInIOnS for the Mimstry when reqUIred. He also felt that gnevor's courses In publIc speakIng and hIS pnor presentatIOn of semInars was Important In demonstratIng hIS sUItabIlIty for the Job as AdvISor Although the InformatIOn gIven by the gnevor was more detaIled In the thIrd competItIOn than In the second competItIOn, there was reference to hIS expenence In presentIng semInars and programs for staff and local hOUSIng authontIes and reference to hIS Involvement In the Bramalea proJect, WhICh had Impressed Mr Antomuk. Had the panel looked at the gnevor'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 Antomuk reluctantly conceded that thIS InfOrmatIOn would have had a posItIve Impact upon hIm. The gnevor's supervIsor Larry Hom, stated In the gnevor's performance appraisal In 1992, that the gnevor had "an expert knowledge of OBC publIshed program gUIdelInes and constructIOn methodology A realIstIc practIcal approach IS a partIcular strength. Employee has resolved vanous dIfficult techmcalIssues (ie InSUlatIOn/vapour/air barner systems) and has demonstrated expertIse where consultIng archItects and mumcIpalItIes have benefited from hIS abIlIty to IdentIfy and solve problems" Although thIS performance appraisal was done pnor to the enactment of the Code In effect at the tIme of the competItIOn, It IndIcates the gnevor had the skIlls and knowledge WhICh could no doubt be updated wIth a penod of onentatIOn. The gnevor's resume and covenng letter WhICh was supported by the InfOrmatIOn that he gave at the IntervIew demonstrated that he had some current Code expenence even though he conceded he had worked more wIth prevIOus Codes Mr Antomuk had overlooked thIS expenence 2 The Building Code Act requires that a permit must be issued if among other things, the yt,ork yt,ilf not contravene the Building Code and other applicable l~ What is meant by applicable l~ ? The panel was testIng the candIdate's knowledge of the BUIldIng Code Act, and was lookIng for a defimtIOn of applIcable law and for some examples 32 The gnevor 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 'mumcIpal by-laws' Dr Arlam gave the gnevor 1 pOInt for gIVIng a correct answer 'mumcIpal by-laws' although he dId not belIeve that the basIs for the gnevor's answer was correct Mr Antomuk gave hIm no pOInts, as In hIS VIew the answer was wrong. The Umon submItted that the gnevor should have been gIven credIt for both answers and should have receIved 2 5 pOInts out of 5 from both Dr Arlam and Mr Antomuk. The Umon submItted that thIS questIOn was one WhICh showed an InCOnsIstent treatment In navIgatIng the Code as the gnevor was not gIven credIt for navIgatIng the Code by both panelIsts The questIOn on ItS face called for a defimtIOn or an explanatIOn of applIcable law BIll HamIlton receIved half marks for beIng half nght, after gIVIng a defimtIOn and refernng to some examples GIven the Incompleteness of the gnevor'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 Arlam's score WhICh gave the gnevor partIal credIt for hIS answer However as Mr Antomuk dId not credIt the gnevor wIth 'mumcIpal by- law' WhICh broadly Interpreted, IS an example of applIcable law Mr Antomuk's should have acknowledged and gIven hIm a pOInt for that answer Dr Arlam and Mr Antomuk dId treat navIgatIng the Code dIfferently Dr Arlam credIted the gnevor wIth lookIng at the Code WhICh led to an answer WhICh he consIdered correct, whIle Mr Antomuk 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 Umon 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 gnevor that more examples were reqUIred does not assIst the gnevor 3 If a building inspector observes that a building is being built yt,ithout a permit, yt, hat 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 gnevor receIved 1 pOInt from Arlam and no pOInts from Mr Antomuk for hIS answer The Umon 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 customanly 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 gnevor'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 gnevor 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 sconng of the gnevor' s answer In thIS regard. The Umon 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 Arlam and Mr Antomuk, consIdered 'obtaInIng a stop work order' as a correct answer As Dr Arlam gave the gnevor credIt for thIS answer but Mr Antomuk dId not at the IntervIew even though he admItted In hIS testImony that It was a correct answer Mr Antomuk's score should be amended to 1 4 You receive a telephone call from a building owner Yf,ho claims that the building department refuses to issue a building permit for alterations to his building in order to comply Yf, ith an Order under the Fire Protection and Prevention Act because the use of building does not comply Yf, ith the Zoning by- lffit,s. What advice Yf,ould you offer to the building oYf,ner? 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 243 (3) of the BUIldIng Code to permIt complIance wIth the Order The permIt should IndIcate the condItIOnal nature" The gnevor receIved 2 pOInts out of 5 from both Dr Arlam and Mr Antomuk. The Umon claimed that he ought to have receIved 5 pOInts The Umon submItted that the gnevor's answers 'to go to the CommIttee of AdJustment or for rezomng and to go to the CIty councIl' were correct. In the Umon's VIew he should also be gIven full credIts for gIVIng a correct answer after reCeIVIng a prompt. 34 NeIther BIll HamIlton nor the gnevor receIved credIt for answenng that the AdvISor should have advIsed gOIng to the CommIttee of AdJustment, as It was not consIdered a correct answer In Dr Arlam'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 zomng Issues, and further If that was done, It would leave the bUIldIng In an unsafe condItIOn for a longer penod of tIme In addItIOn, the gnevor mIssed the fire safety Issues Mr Antomuk dId accept that gOIng to the CommIttee of AdJustment was as the ultImate step In the process The gnevor 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 gnevor' s answer was not wIthIn the scope of the answer reqUIred. As the gnevor's answer was not dIrected to the area WhICh the panel saw as answenng 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 zomng 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 matenal defect however In the sconng of thIS answer relates to the treatment of the questIOn after a prompt IS gIven. The gnevor was prompted when the answer he gave was not wrong, but not on pOInt. The prompt served to clanfy the questIOn. Upon clanficatIOn the gnevor 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 opportumty to obtaIn full credIt. 5 It IS unnecessary to go Into thIS questIOn, as the gnevor was gIven full marks for hIS response 6 You receive a call from a plans examiner lj, ho needs advice on lj, hether or not the actual percentage of glazed areas in the exposing building face of a house can be double if lj, ired glass in steel frames or glass block lj, as used What lj, ould 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 opemngs 35 The gnevor dId not look at Part 9 He checked Part 3 of the Code and concluded that the area could be doubled. Dr Arlam 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 gnevor dId not receIve any pOInts from Dr Arlam for navIgatIng the Code, as he went to the wrong part of the Code The gnevor 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 Antomuk. Mr Antomuk found that the gnevor 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 Umon challenged both the correctness of the model answer and the sconng of the questIOn and was seekIng 5 marks for hIS answer The gnevor 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 Umon submItted that as the NatIOnal Research CouncIl supported the gnevor's answer the gnevor should be gIven full credIt for hIS answer I do not agree wIth the Umon's posItIOn as to the correct answer to thIS questIOn. The gnevor specIfically dIrected hIS questIOn to the applIcatIOn of the NatIOnal BUIldIng Code and not the Ontano BUIldIng Code, and the InstItute confirmed that pOInt of reference In addItIOn, the letter noted that "the Ontano BUIldIng Code IS at vanance 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 Ontano Code, wIth the result that the area could not be doubled. The Ontano BUIldIng Code has two concepts, that of unprotected opemngs, and glazed areas Dr Arlam explaIned that under the Ontano BUIldIng Code, glazed areas are unprotected opemngs, but unprotected opemngs are not necessanly 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 opemngs 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 6000 square feet and where there IS an unprotected opemng that IS glazed and therefore IS governed by ItS own provIsIOn, 32311 It also makes a dIstInctIOn between houses greater than and less than 6 000 square feet. Mr Antomuk also pOInted out that the NatIOnal Code focuses on unprotected opemngs 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 gnevor's s answer was not correct as It does not relate to the vast maJonty of houses Although the gnevor's answer IS not Incorrect, as It relates to unprotected opemngs 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 gnevor 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 Arlam's testImony pOInts out, the gnevor's answer dId not show an understandIng of the concepts of glazed openIngs In a house versus unprotected opemngs Although the gnevor navIgated through the Code, he dId not begIn or end In the nght sectIOn and therefore In the cIrcumstances, Dr Arlam's assessment was not shown to be Incorrect. As Mr Antomuk 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 MP P lJ, ho 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 lJ,Oltld 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 lJ,ould 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 techmcal element and a commumcatIOns element. The gnevor receIved 2 pOInts for hIS answer and BIll HamIlton 3 pOInts The Umon submItted that the gnevor 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 Matenals and EvaluatIOn CommIssIOn" and he receIved no pOInts for commumcatIon. The Employer submItted that the scores should not be changed as the gnevor 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 commumcate, and It was not marked as such. 37 However the gnevor was not treated In the same way as BIll HamIlton, by eIther Dr Arlam or Mr Antomuk. Both BIll HamIlton and the gnevor gave an answer WhICh was not In the model answer 'to go to the MPP' WhICh both Dr Arlam and Mr Antomuk said was correct. BIll HamIlton receIved three pOInts for the same two responses as the gnevor's However the gnevor gave further answers WhICh were not correct. The Employer showed that although the gnevor 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 unfamIlIanty 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 yt,ho claims that although his houses are essentially completed yt,ith 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 yt,ho 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 yt,ilf be resolved before the heating season. Hoyt, yt,ould 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 functIOmng, as a result of a labour stnke The model answer stated to "advIse the bUIlder that the DIrector of HOUSIng Development of the BUIldIngs Branch has no authonty over the enforcement of the BUIldIng Code because under the BUIldIng Code Act It IS the responsIbIlIty of the mumcIpalIty The bUIldIng officIal does not have the authonty to change the reqUIrements of the code" The Umon submItted that Mr Antomuk's mark of 3 pOInts out of 4 pOInts for the gnevor should not be changed, but that Dr Arlam's should be Increased from 2 pOInts to 2 5 pOInts to account for the gnevor's s navIgatIOn of the Code The Employer submItted that the gnevor's scores should not be changed as the gnevor had not gIven a complete answer and when prompted gave an Incorrect answer ImtIally the gnevor 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 gnevor 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 gnevor'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 ongInally correct response Unfortunately It dId not result In a complete and correct answer However as he dId navIgate the Code In the nght area and ImtIally responded correctly Dr Arlam's score of hIm, to be consIstent WIth Dr Arlam'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 Umon. BIll HamIlton gave a correct answer but was prompted to expand and dId so In by artIculatIng that It was the responsIbIlIty of the mumcIpalIty 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 lJ, ith the follolJ, ing information. Hazard Index of the existing use is 6 Construction Index of the existing building is 2 Hazard Index of the nelJ, major occupancy is 4 The designer lJ,ants to lalOlJ, lJ,hether or not the building needs to be upgraded to a Construction Index of 4 to match the Hazard Index of the nelJ, 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 techmcal 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 Arlam and Mr Antomuk 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 gnevor gave the correct answer to the questIOn, but both Dr Arlam and Mr Antomuk 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 gnevor's answers IS, that In Dr Arlam's VIew the gnevor 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 nght 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 nght approach. 39 The Umon proposed that the gnevor receIve 5 out of 6 pomts, losmg one pomt for hIS navIgatIOn, and the Employer proposed no change m the score as the gnevor dId not understand Part 11 whIch was the purpose of the questIOn. As the gnevor showed no understandmg 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 gnevor was gIven full credIt for hIS answer 11 Can you name some of the other provincial legislation that relate to the Building Code? The Umon's cntIcIsm 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 gnevor receIved credIt for three correct examples However Employer counsel submItted, as the gnevor also mcluded the Plumbmg Code whIch was not correct, the score should not be changed as It exhIbIted a lack of understand mg. The gnevor receIved 2 marks out of 4 from Dr Arlam and only 1 from Mr Antomuk, as the gnevor asked the questIOn to be repeated. BIll HamIlton gave SIX correct examples and receIved full credIt for hIS answer As the gnevor gave five examples, of whIch only three were correct, whIle BIll HamIlton gave SIX correct answers, receIvmg 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 Umon accepts the gnevor's score of 4 pomts out of 6 pomts. 13 The Building Code requires that lJ,here 10lJ, vapour permeance sheathing or cladding is installed, a vapour barrier lJ, ith vapour permeance of not more than 15 ng Pa.s.m squared shall be used What constitutes a 10lJ, vapour permeance sheathing or cladding and could you provide some examples? ThIS questIOn calls for a defimtIOn followed by some examples The Umon submItted that thIS questIOn be removed, as the panelIsts had noted that the gnevor was confused, and yet they dId not rephrase the questIOn. The Umon submItted that It was IllogIcal for the Employer to conclude that the gnevor was not knowledgeable on thIS tOpIC gIven hIS memo on vapour barners, whIch was contamed m the matenals provIded to the panel at the mtervIew The Umon submItted that the questIOn was also unfair as there was no mdIcatIOn of the 40 number of examples reqUIred, and that BIll HamIlton was gIven an unfair advantage by bemg prompted after gIvmg a meamngless 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 gnevor receIved 1 mark from Dr Arlam and none from Mr Antomuk. The gnevor dId not define low vapour permeance and he dId not gIve any examples, whIch were correct on the basIs of the mformatIOn provIded. Although Mr Antomuk noted that the gnevor gave two examples, that of an Ice or water shIeld, Dr Arlam dId not gIve the gnevor credIt for these examples as they were not correct wIthout mcludmg the level of vapour permeance Dr Arlam gave the gnevor 1 pomt for navIgatmg the Code and gomg to the AppendIx, whIch contamed some examples, although the gnevor dId not refer to them BIll HamIlton receIved 3 pomts from Dr Arlam and 2 from Mr Antomuk. As BIll HamIlton defined low vapour permeance but dId not provIde the umt of measurement, he was only gIven partIal credIt for hIS answer BIll HamIlton then gave two examples, whIch were found m the model answer and was prompted after gIvmg a thIrd example, "ngId msulatIOn" whIch was consIdered mconclusIve by Itself The Umon alleged that the questIOn ought to be elImmated, as It was confusmg. Even though an mtervIew IS an oral form of questIOmng, 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 gnevor had found the questIOn unclear It was mcumbent upon hIm to ask for the questIOn to be rephrased. It IS not mcumbent upon the mtervIewers to read mto the gnevor's mmd and rephrase the questIOn wIthout bemg asked. Although the Umon alleged that the panel had acted mconsIstently by promptmg BIll HamIlton, and by faIlmg to prompt the gnevor thereby dIsadvantagmg the gnevor promptmg BIll HamIlton m thIS case was consIstent WIth promptmg a candIdate who answers correctly but mcompletely or where an answer reqUIres a further explanatIOn such as where the gnevor was afforded the opportumty m 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 numenc value for low vapour permeance and gave examples that could fall wIth the correct category mdIcated that he knew that answer but hIS answer was not as complete as the panelIsts were seekmg. UnlIke BIll HamIlton's answer there was no mdIcatIOn m the gnevor's answer that he knew what low vapour permeance was The gnevor went to the nght source of the examples, the AppendIx, but then dId not answer the questIOn. The answer the gnevor gave was wrong. His answer was recorded by Dr Arlam as, "when you reqUIre hIgh permeance must use poly 'confusmg' CGSB - hIgher 41 standards" The confusIOn that the gnevor exhIbIted was consIstent WIth not knowIng the answer The reason that the gnevor was not able to respond to thIS questIOn IS unknown and IS purely speculatIve Although panels have to consIder matenals other than the IntervIew there IS no oblIgatIOn to ask for and reVIew work samples pnor to the competItIOn In order that they can be consIdered at the IntervIew In response to a partIcular questIOn. The consIderatIOn of these matenals IS properly the matter for consIderatIOn In questIOn 16 The Umon IS really askIng that the advantage that the gnevor was gIven In hIS reply to questIOn 9 be gIven to hIm agaIn In thIS questIOn. F or questIOn 9 the gnevor was not folloWIng the nght approach and was fOCUSIng on InfOrmatIOn that was not reqUIred, he was prompted and gave the nght 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 stnkIng the questIOn. On the other hand, to stnke the questIOn, when BIll HamIlton had answered the questIOn, whose answer only reqUIred clanficatIOn would be unfair to BIll HamIlton. The complaInt raised by the Umon that not settIng the number of examples was a deficIency was not relevant In thIS sItuatIOn as the gnevor was unable to gIve any correct examples Although Mr Antomuk 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 lJ, hom in order to provide more insulation in the exterior basement lJ,all of a house lJ,ants to provide a 290 mm. unit masonry lJ,all1 6 m. belolJ, grade and extending 150 mm. above grade On top of the masonry lJ,alllJ,il! be provided 150 mm. studs to the underside of the floor joists. The basement height is 22m. What advice lJ,Oltld 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 gnevor receIved 3 out of 4 from Dr Arlam, and 4 out of 4 from Mr Antomuk. The gnevor was prompted for the solutIOn after gIVIng the correct answer The answer the gnevor gave was correct, but not sufficIently techmcal for Dr Arlam 42 As the gnevor's answer was correct as acknowledged by Mr Antomuk and matched the model, he should be gIven full credIt for hIS answer Dr Arlam's score IS to be Increased to 4 15 The joist spans in Table A-2 for joists lJ,ith concrete toppings sholJ, allolJ,able joist spans equal or in some cases more than that of joists provided lJ, ith 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 gnevor was gIven 3 out of 5 by Dr Arlam and 4 out of 5 by Mr Antomuk 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 gnevor 2 pOInts from Dr Arlam and 4 pOInts from Mr Antomuk, 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 gnevor'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 Umon, where he Included the addItIOnal factor of stIffness Dr Arlam saw the gnevor as respondIng correctly but not In full By refernng 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 Antomuk accepted the answer that a "T" effect creates a composIte actIOn, even though Mr Antomuk subsequently qualIfied hIS answer to an extent that It also reqUIres exertIOn to obtaIn that composIte actIOn. Dr Arlam's score should be amended to 4 to accord wIth Mr Antomuk's InterpretatIOn of the answer If the answer was correct, but not as complete as Dr Arlam was seekIng, the gnevor ought to have been prompted to expand hIS answer as In earlIer questIOns 16 What other information about your abilities or lalOlJ, ledge 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 matenals the gnevor supplIed. The gnevor was the only candIdate to have provIded addItIOnal matenals Although there was an Issue as to whether the gnevor left the matenals or whether they were gIven back to hIm, It was clear from Dr Arlam'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 gnevor were to be 43 consIdered for the posItIOn after the IntervIew He Inferred that It would have been preJudIcIal to consIder these matenals, when the other applIcants had not been asked for sImIlar examples, and had not left other matenals Mr Antomuk had glanced at the matenals 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 matenals Into account under the dIrectIOn of the GUIdelInes and In dIrect response to the questIOn the panel had posed. Dr Arlam dId not take any account of the gnevor's outsIde matenal InformatIOn from these matenals contaIned ReqUIred ReVISIOns to DrawIngs as presented by the gnevor from 1980 and 1981 whIch showed that the gnevor 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 matenals support the gnevor's contentIOn that he had knowledge of the Code In ItS pnor 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 gnevor dId Include among hIS work samples, the letters and further documentatIOn whIch showed knowledge of vapour barners under Part 9 In 1993 and of spnnklIng reqUIrements In the 1990s The InformatIOn Included a defimtIOn of vapour barners, and ItS relatIOnshIp to low vapour permeance and determIned that the substance 'monoglass' met the standard for vapour barners that Incorporate extenor 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 gnevor was not able to answer questIOn 13 correctly thIS outsIde matenal 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 gnevor's testImony and accountIng for the InfOrmatIOn provIded In hIS resume, covenng letters and matenals gIven to the panel, whIch supported hIS resume Dr Arlam's score for the gnevor 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 appropnate A score of 8 5 bears a relatIOnshIp to Dr Arlam's markIng of BIll HamIlton, whom he gave 6 44 pOInts, and who dId not provIde other InfOrmatIOn but showed stronger techmcal background from workIng wIth the Code on a dally basIs as a Code AdvIsor wIth the Ontano Realty CorporatIOn from 1990 UnlIke Dr Arlam, Mr Antomuk dId gIve the work samples some consIderatIOn. As he had noted on hIS questIOnnaire, Mr Antomuk testIfied that he dId consIder the matenals as drew from them that the gnevor had analytIcal skIlls, an abIlIty to commumcate, 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 matenal gIven to the panel In my VIew Mr Antomuk'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 gnevor had receIved and whIch Mr Antomuk agreed, would have had a posItIve effect on hIm, If he had consIdered It. He gave weIght to the gnevor's past expenence wIth Bramalea In constructIOn In the thIrd competItIOn, as the gnevor 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 gnevor had provIded at the IntervIew FInally the matenal on the vapour barners and the remarks of hIS supervIsor on the gnevor's work on vapour barners, 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 Antomuk to have consIdered hIm relatIvely comparable to BIll HamIlton, who dId not have any extra matenals to consIder but whose resume, showed past and present dally use of the Code as a Plans ExamIner and In traInIng and expenence In the Ontano 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 umts of a multI-use bUIldIng whIch was composed of a two storey resIdentIal townhouse above a commercIal umt. The bUIldIng was under one ownershIp but had the capabIlIty to be severed In the future The Umon accepted the Employer's mark of 15 out of 20 for commumcatIOns, but dIsputed the score of 0 out of 10 on ItS techmcal ments and submItted that 8 marks should be substItuted. Dr Arlam was lookIng for two thIngs In the responses, the abIlIty to analyze the Issue and the abIlIty to gIve advIce There were two techmcal aspects to be dealt 45 wIth, the reqUIrements In the Code for separatIng resIdentIal umts, and the effect of the capabIlIty of future severance Although Dr Arlam says the gnevor's answer was wrong he was prepared to gIve hIm 2 pOInts, Instead of the 0 that he had gIven hIm The gnevor correctly concluded that a fire separatIOn was reqUIred but dId not take Into account the garage or commercIal space beneath the resIdentIal umts 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 Umon argued that the gnevor was essentIally correct, as he understood the concept of a fire separatIOn. The Umon pOInted out that BIll HamIlton was gIven 10 pOInts out of 10 for a wrong answer when he said, that a mumcIpalIty may as a condItIOn of approVIng the severance reqUIre firewalls dunng ImtIal constructIOn. The Employer argued the gnevor was wrong on the maIn techmcal 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 umts, he pOInted to fire separatIOn, whIch was correct, but then gave the wrong fire ratIng. Employer was prepared to concede that the gnevor should get 2 pOInts as conceded by Dr Arlam In reVIeWIng the gnevor's s OpInIOn, In thIS example, the gnevor analyzed the problem, but gave the wrong advIce The gnevor 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 umts He categonzed the problem Incorrectly from the start. Therefore the Umon was unable to establIsh any basIs for IncreaSIng the mark based on ItS techmcal correctness, beyond that whIch Dr Arlam conceded ought to have been granted. The flaw In the markIng of thIS questIOn, takIng Into account Dr Arlam's conceSSIOn IS not the markIng of the gnevor's answer but the markIng of BIll HamIlton's answer As the cntena for the markIng component was techmcal 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 gnevor's score where It was Incorrect, would be creatIng a dIstortIOn of hIS abIlItIes In regard to thIS Issue 46 Review of Competition #2 In revIewmg a Job competItIOn the role of the Board IS not to step mto the place of management and to score the applIcants m ItS stead, but It IS to determme when ascertammg If artIcle 6 3 was breached A. whether the mtervIew process whIch mcludes 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 vanous candIdates m the mtervIew process was substantIally mconsIstent to the effect that the mtervIew process was flawed m evaluatmg the qualIficatIOns and abIlItIes of the candIdates The gnevor belIeved that the panel was "gomg through the motIOns" as the panel dId not look at the matenal he had filed, and that he belIeved that as there were no comments on Mr Gryffyn's questIOnnaire that Mr Gryffyn was not takmg the competItIOn senously Although Dr Arlam dId not look at the matenals whIch the gnevor provIded, It was not to Ignore the gnevor but to treat all candIdates equally Contrary to "gomg through the motIOns" both Dr Arlam and Mr Antomuk consIdered each questIOn, annotated the responses and duly weIghed theIr markmg. There IS no basIs for any lack of consIderatIOn gIven to the gnevor's applIcatIOn. I find that the approaches taken by Dr Arlam and Mr Antomuk were thorough and that neIther exhIbIted any preconceIved notIOns or bIas WhIle It was apparent from Mr Gryffyn's sconng and questIOnnaireS that he dId not take many notes, the gnevor's mtervIew was not shown to be treated dIfferently from hIS consIderatIOn of other candIdates Therefore I find that thIS competItIOn was not tamted 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 mconsIstently that the competItIOn IS flawed, It IS necessary to look at the apparent flaws and place them m the overall context of the competItIOn. The most sIgmficant 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 lookmg at these files IS set out m the GUIdelInes at G 4.2 21 where they pomt out that personnel files and performance appraisals are potentIal sources of mformatIOn about the employee's past, whIch should not be overlooked. The GUIdelInes mdIcate theIr value, as they provIde mformatIOn, whIch can be followed up m mtervIews or reference checks Therefore the purpose of lookmg at the personnel files IS to add depth to the evaluatIOn process, so that the panel IS not lookmg solely at the abIlIty of the candIdates to answer any questIOn on a partIcular day but to provIde a greater understandmg of theIr past performance and theIr abIlItIes to determme theIr sUItabIlIty for the posItIOn. 47 The Importance of lookmg beyond the mtervIews was emphasIzed m the Sauve and Esmail decIsIOns whIch held that It IS mcumbent upon the Employer not to rely solely on the mtervIews, but to look at other background matenals such as personnel files, mformatIOn 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 dunng the selectIOn process Past Job performance, partIcularly of sImIlar Job functIOns, must also be consIdered and gIven appropnate weIght. The Board has found ArtIcle 4 3 contravened when the selectIOn commIttee relIed exclusIvely or unduly on mtervIew results and gave too lIttle or no weIght or no weIght to past performance m assessmg qualIficatIOns and abIlIty Christmas and Chaput 907/86 (Gandz) Skagen and Glemnitz 1934/87 (Spnngate) Poole 2508/87 (Samuels) Hall POlJ,ers, 716/89 (Gorsky) It IS not enough to treat past related expenence as a basIs for pre-mtervIew screemng and Ignore It thereafter - past related expenence must be gIven weIght m assessmg the relatIve qualIficatIOns and abIlItIes of the final candIdates Nixon, 2417/87 (Fisher), McIllJ,ain 628/89 (Venty) Properly prepared and conducted tests may be used as part of the selectIOn process, subJect to the lImItatIOn that applIes to mtervIew' 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 dIstmct Job actIvItIes Some of those actIvItIes may form a greater part of the Job than others, and each actIvIty may reqUIre a dIstmct qualIficatIOn or abIlIty As part of ItS selectIOn process, the employer may establIsh a reasonable mImmum 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 mImmum qualIficatIOns or abIlItIes Moses 715/89 (Barrett) Sequeira and Lueck, 766/87 (Gandz) Bent 0031/88 (Knopf) The Employee PortfolIo whIch contamed the gnevor's performance appraisal was placed m eVIdence As mentIOned earlIer If the panel had looked at the performance appraisal they would have found that the gnevor's supervIsor gave the gnevor an excellent reVIew As the performance reVIew was done m 1992, the reference by Larry Hom, that the gnevor 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 gnevor'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 mcorporated 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 mterpretatIOn of the Code GIvmg advIce on the Code IS the very essence of the posItIOn and errors m the mterpretatIOn of the Code could expose the Mimstry to lIabIlIty Therefore although the GUIdelInes asked selectIOn commIttees to aVOId selectmg candIdates based upon theIr recent expenence where It IS not necessary m thIS case current knowledge was vItal to the proper performance of the Job both as an advIsor to others and as a tramer of others Therefore although the Employer expected to have to accommodate and supervIse a new candIdate for a penod 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 cntena, and standards, whIch mcluded current knowledge of the Code The next concern relates to mconsIstencIes m promptmg and ItS effect on the scores Promptmg, m one respect, IS very sImIlar to the dIrectIOn m the GUIdelInes to go beyond the mtervIew to consIder other sources of mformatIOn to enable the panelIsts to more properly assess a candIdate's sUItabIlIty It IS not a precIse tool, but IS a commumcatIOn tool that allows some exchange between the mtervIewers and the mtervIewee and enables the panelIsts to probe a candIdate's answer to determme If the candIdate understands or has knowledge m the area bemg 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 respondmg. The panelIsts are then m the best posItIOn to assess from the way the answer IS gIven, whether It was mtended 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 mtervIews IS not based upon a transcnpt of the questIOns, but IS based upon the recollectIOns of vanous 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 mcomplete ThIS approach was reflected m 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 gnevor was treated m the same way m thIS questIOn, but the prompt resulted m a wrong answer and he was accordmgly 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 mtentIOn to treat the candIdates dIfferently and they were not treated dIfferently many matenal way The sconng followmg the promptmg related to the panel's assessment of the candIdate's comprehensIOn and knowledge of the area. As there was no dIscussIOn pnor to the competItIOn as to how prompts were to be treated there were some mconsIstencIes m ItS applIcatIOn, but even 49 wIthout accountIng for some adJustment In the scores, It was balanced for the most part. The Umon 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 sconng a competItIOn would have been for the panelIsts to decIde pnor to the competItIOn, whether or not there should be pOInts for analysIs, and for refernng to the Code Even so It may also have been dIfficult to apply wIthout any cntIcIsm 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 depnve 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 Arlam gave pOInts for navIgatIOn, on the basIs that It IndIcated an analysIs, although he dId fall to do so In questIOn 8 Dr Arlam dId not gIve any pOInts for navIgatIOn where the answer was wrong Where there were InCOnsIstencIes In Dr Arlam whose approach was to assIst the candIdate, the InCOnsIstencIes were mInor and dId not matenally affect the competItIOn. Mr Antomuk 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 Umon 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 Umon also claimed that the faIlure of the Employer to obtaIn the gnevor's references and to call references for the candIdates constItuted a flaw In the assessment process Although It IS unclear whether the gnevor 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 anses only as It relates to those who the Employer would offer the posItIOn If the references are satIsfactory As the gnevor was dId not meet the mImmum standard set by the Employer thIS was reqUIred In competItIOn #2 In summary there were In essence two types of flaws suggested by the Umon. 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 sIgmficantly A consIderatIOn of outsIde sources would have strengthened the gnevor's posItIOn, but not have establIshed hIm as meetIng the mImmum standard set by the Employer for the performance of the Job WithIn the admInIstratIOn of the IntervIews themselves, even when consIdenng adJustments In the scores, as reflected above, the gnevor dId not meet the mImmum standard, whIch the Employer set as a reqUIrement for the posItIOn, whIch was reasonable In the CIrcumstances Therefore the Umon dId not dIscharge the onus on It to establIsh on a balance of probabIlItIes that had the defects not occurred that the gnevor would have met the cntena establIshed by the Employer I do not find that the Umon has been able to prove on a balance of probabIlItIes that the Employer breached artIcle 6 1 In faIlIng to appoInt the gnevor to the posItIOn on the eVIdence and arguments on these Issues Surplus Issue The Umon also claimed that the gnevor was entItled to the posItIOn as he had been placed on surplus The Employer breached DIrectIve 4 2.2 whIch dIrected the Employer "pnor to takIng any staffing actIOn, the mImstry must determIne If there are any surplus employees by sendIng to the Redeployment Umt, Employee ServIces Branch, Human Resources S ecretan at, 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 thI s sItuatIOn, the gnevor 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 gnevor As stated above the gnevor 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. ConsIdenng the eVIdence and the submIsSIOns of counsel, as dIscussed above there IS no vIOlatIOn of artIcle 6 3 In CompetItIOn #2, and the gnevance 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 H 0lJ, does your past experience qualifY you for the job? ThIS questIOn IS to be consIdered wIth questIOn 14 whIch asks lJ, hat other information about your abilities or lalOlJ, ledge can you give to assist us in determining your suitability? As In the second competItIOn thIS questIOn provIdes the opportumty for the candIdate to express and expand on hIS qualIficatIOns, credentIals and expenence as It relates to the J ob both at the begInmng and the end of the IntervIew The Umon submItted that the gnevor's resume showed that he was more qualIfied than Ann ReId for the posItIOn, and accordIngly hIS score should be greater The Umon accepted Dr Arlam's and Mr Antomuk's score, but submItted that Mr Gryffyn's sconng should be Increased to 8 The Umon dId not show that Mr Gryffyn's Judgment was In error There IS no dIspute over the sconng of the gnevor by Dr Arlam and Mr Antomuk. 2 If a building inspector observes that a building is being built lJ,ithout a permit, lJ, hat can the inspector do? ThIS IS the same questIOn as questIOn 2 In the second competItIOn. The gnevor receIved 2 marks from both Dr Arlam and Mr Antomuk for hIS response The Umon made the same submIssIOns on the flaws to thIS questIOn, as It had In CompetItIOn #2 Umon 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 descnbe the steps the Inspector would take sequentIally and therefore hIS answers were correct. The Umon submItted that the gnevor 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 Umon submItted that the gnevor 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 Arlam's eVIdence as corroborated by Mr Antomuk, that the answer that a condItIOnal permIt IS wrong, as he stated that the Inspector Issues an order to comply and It IS the mumcIpalIty 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 gnevor was credIted wIth that answer as was Ann ReId and Ben PUCCI As a result, Kuntz 52 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 Arlam and Mr Antomuk. 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 gnevor was marked consIstently as he only gave two correct answers The Umon submItted that the questIOn was flawed as It dId not advIse the candIdates the number of examples It was seekIng. WhIl e thI s 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 gnevor 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 Umon was not seekIng a change to thIS score 4 A 600 square metre tJ+o storey building contains eight tJ+o 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 lJ, ith 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 Arlam stated thIS questIOn was Intended to reflect the type of techmcal 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 gnevor 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 gnevor receIved 5 out of 6 from both Dr Arlam and Mr Antomuk. The Umon submItted that the gnevor ought to have receIved full credIt for gIVIng a correct answer for a Part 3 bUIldIng. The Umon submItted that the gnevor should not be penalIzed for not heanng '600 square metre' whIch IS the dIStIngUIShIng charactenstIc between a Part 3 and Part 9 bUIldIng. Both Ann ReId and Ben PUCCI understood the cntena for the questIOn. If the gnevor 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 53 SUpposItIOn on the Umon'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 gnevor 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 lJ,hich she feels exceeds the requirements of the Building Code but building officials around the province lJ,ould 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 lJ,Oltld 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 Arlam and Mr Antomuk each gave the gnevor 3 out of 5 for gIVIng three correct answers, 'applYIng to the BUIldIng Matenals 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 Umon challenged the sconng 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 Umon also claimed that the markIng of thIS questIOn IS flawed as Ann ReId was gIven full credIt by Mr Antomuk after gIVIng 4 correct answers and then after beIng prompted, was gIven credIt for the final pOInt. The Employer claimed the panelIsts gave the gnevor credIt for hIS correct answer The Employer submItted that Ann ReId's sconng was not Inappropnate UnlIke the gnevor 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 gnevor to an addItIOnal pOInt If he had gIven that response Dr Arlam and Mr Antomuk 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 Arlam and Mr Antomuk, It IS more than lIkely an error that Mr Gryffyn had not checked off the nght commISSIOn. Even wIthIn Mr Gryffyn's questIOnnaire, four correct pOInts were not gIven. The Umon 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 54 questIOn IS askIng for the optIOns that a supplIer has under the Code, whIch would be definable by the answer The gnevor gave a senes 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 gnevor answered If he belIeved he had gIven a full and complete answer The gnevor 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 gnevor's s score 6 A second storey office building has a horizontal dimension of 12 m. x 20 m. According to the Building Code lJ,hat is the least distance required betJ+een tJ+o exits served by a public corridor? ThIS questIOn IS lookIng for the mImmum dIstance served by a publIc corndor 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 corndor The gnevor receIved 3 marks out of 6 from both Dr Arlam and Mr Antomuk for hIS response to thIS questIOn. The Umon submItted that the gnevor 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 gnevor 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 Umon's submIssIOn that the gnevor was prompted away from the correct answer In order to answer thIS questIOn, the gnevor had to Interpret and apply the Code and was unable to do so The gnevor 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 opportumty 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 55 annotated In theIr notes, that the gnevor was not able to Interpret the Code In thIS area. The net result IS, that the gnevor was only partIally correct, and both Dr Arlam and Mr Antomuk credIted hIm for lookIng at the nght artIcle of the Code There IS no basIs to change the gnevor's S scores for thIS questIOn. 7 What is the permitted maximum percentage of glazed areas of a sprinklered house lJ, ith 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 spnnklered house GIven the area, the glazed area IS not permItted to be doubled as In the case of unprotected opemngs 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 Arlam agreed, and the Employer conceded, that as submItted by the Umon that Dr Arlam's mark for the gnevor should be 5 and therefore thIS adJustment IS to be made Mr Antomuk felt hIS mark should not be changed as In hIndsIght he had gIven too hIgh a mark for the answer The gnevor 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 Antomuk 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 cbtelling units are leased to individual couples lJ, ho 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 umts 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 56 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 gnevor receIved 3 out of 6 from Dr Arlam and only 1 out of 6 from Mr Antomuk. The Umon submItted that the treatment of Ann ReId and the gnevor were not comparable Ann ReId was only deducted one mark for comIng to a wrong conclusIOn, whIle the gnevor gave a nght 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 Umon was confused as to what was the correct answer for thIS questIOn. She submItted that at no tIme dId the gnevor say that It was a Group C maJor occupancy whIch was the correct answer Employer counsel submItted that Dr Arlam gave the gnevor credIt for gOIng to the defimtIOn of 'occupancy' and for beIng aware that changes had been made to the Code In thIS area, and Mr Antomuk credIted hIm wIth one pOInt for beIng aware that thIS area of the Code had changed. Therefore, she submItted that the gnevor's score ought not to be changed. Ann ReId correctly navIgated through the Code came to the nght 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 Arlam and 4 out of 6 from Mr Antomuk. The gnevor In companson to Ann ReId, dId not go as far as Ann ReId. He started In the nght 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 gnevor was not scored InCOnsIstently WIth Ann ReId as suggested by Umon. The gnevor was marked fairly essentIally for navIgatIng the Code, SInce at no tIme dId he gIve the correct answer Mr Antomuk 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 matenals 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 gnevor 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 HolJ, lJ,ould you plan your presentation? This question tests the capacity to plan and organize conferences. The panellJ,as looking more at the organization than technical aspects. Both Dr Arlam and Mr Antomuk gave the gnevor 4 pOInts out of 5 for hIS response 57 Dr Arlam dId not gIve the gnevor full marks as he started wIth the techmcal aspect pnor to the planmng aspect. Mr Antomuk marked the gnevor'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 gnevor's, the gnevor's answer was better than Ben PUCCI'S The Umon submItted that the gnevor was Inappropnately penalIzed for approachIng the answer from a techmcal perspectIve first, as the approach reqUIred was not clear from the questIOn. The Umon further submItted that the gnevor had receIved a perfect score for hIS answer In the second competItIOn and therefore he knew the answer The Employer submItted that the gnevor lost pOInts for not consIdenng the Interests of the group and therefore hIS scores should not be changed. Dr Arlam Incorrectly deducted pOInts from the gnevor for begInmng wIth the techmcal aspects In planmng a conference, as there was no IndIcatIOn In the questIOn that would gUIde the candIdate to a partIcular sequencIng. The gnevor 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 techmcal knowledge and understood that the Issue of firestoppIng was broad. He also went outsIde the model answer to bnng In other elements, none of whIch were wrong. Therefore Dr Arlam's assessment was flawed and accordIngly an adJustment can be made to gIve the gnevor a score of 5 As thIS questIOn IS an open ended questIOn, whIch the panel recogmzed In settIng out the model answer a relatIve companson of the candIdate's answers IS valId and therefore to account for the relatIve dIfference between the gnevor's answers and that of Ann ReId's and Ben PUCCI'S, Mr Antomuk's score IS to be adJusted to 45 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 lJ,ithin 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 (C 130) 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." 58 The gnevor receIved 1 out of 6 from Dr Arlam, and 0 out of 6 from Mr Antomuk. The Umon claimed that the questIOn was flawed, as It dId not refer to an exceptIOn, and further the gnevor 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 Umon' 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 Umon'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 Umon'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 Arlam nor Mr Antomuk agreed wIth the Umon's OpInIOn of the answer and the Employer's InterpretatIOn IS not clearly wrong, and there was no eVIdence from the Umon to support theIr InterpretatIOn, I find that the model answer can be relIed on as the answer to the questIOn. Even If the Umon were correct, whIch I do not find, In shoWIng that the model answer was wrong, the gnevor dId not show any analysIs behInd hIS answer to show that he understood the sectIOns and whether or not they applIed. In thI s Instance, the gnevor 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 gnevor's answer was not treated In the same manner as Dr Arlam treated Ann ReId's answer The gnevor followed the same procedure as Ann ReId, and as wIth Ann ReId came up wIth the wrong answer The gnevor 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 gnevor and Ann ReId alIke Therefore Dr Arlam's score IS to be changed to 2 pOInts to reflect the same approach as he took wIth Ann ReId. 59 Mr Antomuk treated the gnevor'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 gnevor'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 gnevor's answer was comparable to Ann ReId's and Mr Antomuk dId not treat hIm In the same way as Ann ReId's, there was an error In assessment and Mr Antomuk's score IS to be amended to 3 11 The Building Code requires that lJ,here 10lJ, vapour permeance sheathing or cladding is installed a vapour barrier lJ, ith vapour permeance of not more than 15 ng Pa.s.meter squared shall be used What constitutes a 10lJ, vapour permeance sheathing or cladding and could you provide some examples? The questIOn IS desIgned to test the candIdate's knowledge of bUIldIng SCIence 1 e the dynamIcs of a wall It addressed the dIfference between vapour barners and vapour permeance and was lookIng for an undefined number of examples The questIOn related to knowledge whIch AdvIsors need concermng small bUIldIng areas, or larger bUIldIngs or bUIldIng sItes under Part 5 of the Code There are no defimtIOns for low vapour permeance sheathIng or claddIng found In the Code, although examples are found In the AppendIx. Both Dr Arlam and Mr Antomuk allocated 3 pOInts for the defimtIOn and 3 pOInts for examples The gnevor receIved 2 pOInts out of 6 from Dr Arlam and 1 pOInt out of 6 from Mr Antomuk. The gnevor dId not gIve a defimtIOn, but looked In the Code where It related to vapour barners After promptIng, the examples he gave were, stucco on Styrofoam, plywood, precast concrete and bnck wall over Styrofoam. Dr Arlam gave hIm credIt for plywood, whIch was part of the model answer and for Styrofoam as certaIn types of Styrofoam can meet the cntena. The gnevor's example of bnck veneer was wrong and hIS other examples depended upon theIr physIcal components, whIch he dId not gIve The Umon submItted that the gnevor was ObvIOusly confused, but as the questIOn was broad based, and the gnevor gave a number of pOInts, he should be credIted for gIVIng 4 correct responses The Employer submItted that SInce the gnevor dId not gIve a defimtIOn, he dId not show that he knew the cntena for low vapour permeance sheathIng or claddIng. As a result, It was dIfficult to gIve the gnevor 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 gnevor dId not define low vapour permeance sheathIng or claddIng, he dId not answer the first part of the questIOn. His example of a bnck veneer was wrong. By not beIng able to gIve the defimtIOn, nor the specIfic reqUIrements for the gnevor's examples that made them become low vapour permeance sheathIng 60 or claddIng, he had not gIven a correct answer The answer was potentIally correct, dependIng upon Its constItuent parts However the gnevor was not prompted to determIne whether he dId understand or knew the basIs for hIS answer whIch had been done In pnor 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 defimtIOn and two examples, showed that he understood the concepts Ben PUCCI receIved 4 pOInts from Dr Arlam and 6 pOInts from Mr Antomuk. The gnevor'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 Arlam and 1 pOInt by Mr Antomuk. Ann ReId and Kuntz' comprehensIOn appears comparable Ann ReId could gIve the defimtIOn but no examples, and the gnevor could gIve examples, whIch could be correct, If the context was correct but gave no defimtIOn. As the gnevor navIgated the Code, and then gave answers, whIch could have been correct, and he was not prompted for clanficatIOn, 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 gnevor receIved full marks for hIS answer 13 As a code advisor you receive a call from a CBO in a small tOlJ, nship She has a tJ+o storey 600 square meter apartment building lJ,ith tJ+o unenclosed exterior exits stairs that serve the second floor There are openings in the exterior lJ,all on the first floor of the building lJ, ithin 3 meters of the exits and she is asking lJ, hether the openings are to be protected lJ, ith lJ, ired 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 opemngs to the one eXIt have to be protected. The gnevor receIved 3 out of 6 from Dr Arlam and 2 out of 6 from Mr Antomuk. The gnevor concluded that the WIndows dId have to be protected. Dr Arlam found that the gnevor was unable to Interpret the Code He went to the nght 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 Arlam stated that the gnevor would have been correct If he had stated that there were only two apartments and each eXIt served only that apartment. Mr Antomuk gave the gnevor credIt for startIng In the nght sectIOn of the Code and attemptIng to do the analysIs, even though the analysIs was wrong. 61 The Umon submItted that the bUIldIng could be configured In two possIble ways, and as the gnevor had gIven the correct solutIOn for one of the configuratIOns, he was entItled to receIve 6 pOInts The Umon submItted that the letter whIch the gnevor had obtaIned from the NatIOnal Research CouncIl, supported the gnevor's answer The letter contemplated two possIble configuratIOns to the bUIldIng, one of whIch supported the gnevor's answer In further support, the Umon submItted that Mr Antomuk agreed that It was possIble to have two configuratIOns The Employer submItted that although the gnevor 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 gnevor was not relevant to the answer The questIOn dId not contaIn the restnctIOn In access that the gnevor was relYIng on. The NatIOnal Code answer posed two scenanos, In the first scenano there are two unenclosed eXIts servIng more than one umt, In whIch case the opemngs do not need protectIOn, and In the other sItuatIOn, there are two extenor stairs, but each eXIt serves only one umt, In whIch case the opemngs must be protected. Although the gnevor was relYIng on the second scenano the questIOn In the IntervIew was not dIrected to that scenano The questIOn specIfically refers to two extenor eXIts servIng the floor As thIS was not the sItuatIOn gIven In the questIOn, the NatIOnal Research CouncIl responses do not assIst the gnevor There IS no basIs to change the markIng of thIS questIOn. ThIS IS not a sItuatIOn In whIch the gnevor gave a correct but Incomplete answer whIch should then have been prompted. The gnevor dId not answer the questIOn correctly and he dId not make It clear that he understood the Issue, and that he was answenng In the context of havIng only one eXIt. Therefore the assessment by the panel IS not flawed. Written Question The Umon dId not dIspute the markIng of thIS sectIOn and therefore the Employer's marks stand. Mr Antomuk marked the wntten response on ItS level of commumcatIOn, and Mr Gryffyn marked the answer on ItS techmcal ment. The gnevor was gIven a score of 10 out of 10 on the techmcal portIOn and 8 out of 10 on commumcatIOn. Ann ReId was scored 8 out of 10 on the techmcal portIOn and 8 out of! 0 on com mum catIOn. Ben PUCCI was gIven 4 out of 10 on the techmcal aspects and 10 out of 10 for commumcatIOn. Review of Competition #3 CompetItIOn #3 IS subJect to the same tests as set out for CompetItIOn #2 For convemence, I repeat them The role of the Board IS to determIne when ascertaInIng If artIcle 6 3 was breached 62 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 vanous 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 Umon suggested that competItIOn #3 was taInted by the Employer's actIOns, as Dr Arlam marked on the ImtIal screemng document that there was no need to IntervIew the gnevor as hIS prevIOus IntervIew would be consIdered. In the Umon's VIew the Employer was merely gOIng through the motIOns of thIS IntervIew as It had already decIded that the gnevor was not sUItable for the posItIOn. The eVIdence does not bear out the Umon's posItIOn. The gnevor as all of the candIdates went through the same process He was IntervIewed agaIn, fresh questIOns were Included In the competItIOn, the gnevor'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 Umon claimed that the competItIOn was flawed by the Employer's faIlure to consIder and weIgh outsIde InformatIOn such as the gnevor's personnel file contaInIng hIS performance appraisal, speakIng to the gnevor's supervIsor and reVIeWIng and weIght the matenal he filed In thIS competItIOn As In competItIOn #2, the faIlure to look at outsIde sources was a sIgmficant 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 gnevor presented the same matenal 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 nse to the same consIderatIOns as hIS matenals on vapour barners As the matenals 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 gnevor'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 gnevor by promptIng hIm, whether to encourage hIm to gIve a more 63 complete answer or to refocus hIm on the appropnate 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 Umon was able to show that the use of promptIng In thIS competItIOn constItuted a fundamental flaw SImIlarly there were no sIgmficant flaws In the assessment of a candIdate's navIgatIOn of the Code In thIS competItIOn. The Umon claimed that the faIlure to call the gnevor and contact hIS references was a flaw In the competItIOn. The gnevor 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 consIdenng the adJustments In the scores as dIscussed In thIS decIsIOn, the gnevor dId not meet the mImmum 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 pnor to the selectIOn, but are used once the selectIOns are made among those In contentIOn, to venfy that the references are satIsfactory As the gnevor 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 Umon also challenged the selectIOn of Ben PUCCI In CompetItIOn #3 as he dId not meet the 50% cntena on the wntten portIOn. Although the Employer selected Ben PUCCI, who dId not meet the cntena for the techmcal portIOn of the wntten questIOn, thIS selectIOn does not make the standard unreasonable nor dIscredIt the standard. DespIte only reCeIVIng 4 out 10 on the techmcal portIOn of the wntten 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 gnevor's challenge to selectIng Ben PUCCI dId not come from a posItIOn that IS supportable by the gnevor His sItuatIOn was not that he met the Employer's cntena, and Ben PUCCI dId not. The gnevor dId not come wIthIn the 10 pOInts of Ben PUCCI, the area whIch the panel had chosen as somewhat comparatIve and requmng further analysIs The gnevor'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 runmng 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 matenal 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. 64 FInally the Umon claimed that If the Umon was unable to establIsh that the posItIOn was to be filled on the basIs of the gnevor's qualIficatIOns and abIlItIes, the Umon was seekIng to have the gnevor 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 Arlam 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 mImmal supervIsIOn, whIch would be contrary to fillIng the posItIOn by USIng an underfill assIgnment. No such assIgnments were made dunng the penod covenng thIS gnevance On the basIs of the eVIdence and submIssIOns made, the Umon 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 gnevor was entItled to be IntervIewed on the basIs of the InformatIOn contaIned In hIS resume, the Issue IS whether the Umon 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 gnevor'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 gnevor obtaIned as reflectIng hIS qualIficatIOns skIlls and abIlItIes, by the panel, and adJustments made as a result of thIS heanng, dId not establIsh that he could meet the mImmum standard set by the Employer Furthermore, In neIther competItIOn dId the InfOrmatIOn and assessments support a conclusIOn that the gnevor was relatIvely equal to Doug Overbo Therefore, there IS no basIs upon whIch to conclude that had the gnevor 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 65 successful candIdate Doug Overbo Therefore the there was no vIOlatIOn of artIcle 6 3 In CompetItIOn #1 Therefore the gnevance based on CompetItIOn #IIS 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 gnevor's resume and covenng 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 gnevor were not relatIvely equal to those of Doug Overbo Therefore the Employer dId not vIOlate artIcle 63 In competItIOn #1 and thIS gnevance 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 matenal presented by the gnevor at the IntervIew and there were some flaws In the admInIstratIOn of the IntervIews, that the Umon dId not prove on a balance of probabIlItIes, that A the IntervIew process IncludIng the nature of the questIOns and answers, outsIde matenal 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 vanous 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 gnevor 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 gnevance 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 matenal presented 66 by the gnevor at the IntervIew and there were some flaws In the admInIstratIOn of the IntervIews, that the Umon dId not prove on a balance of probabIlItIes, that A the IntervIew process IncludIng the nature of the questIOns and answers, outsIde matenal 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 vanous 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 gnevor 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 gnevance 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 techmcal nature of the work Involved In the posItIOn, and the numbers of Issues, thIS arbItratIOn reqUIred numerous days of heanng extendIng over two years The gnevor had also launched other gnevances, whIch the partIes agreed would be dealt wIth at thIS heanng. After five day days of heanng, a medIatIOn was held on October 25 1999 dunng whIch the partIes were able to resolve several gnevances that would otherwIse have prolonged the heanng consIderably The partIes reached an agreement on a gnevance dated June 2, 1993 on the Issues of specIal and compassIOnate leave, and a gnevance dated December 26 1996 for wrongful surplus, dISCnmInatIOn and harassment. Although settlement was canvassed from tIme to tIme dunng the arbItratIOn process, the partIes advIsed me that a settlement of the remaInIng gnevances was not possIble From the outset of the heanng, the partIes and counsel worked together to ensure that the process was not unduly prolonged. They agreed that all the gnevor's gnevances be heard together they cooperated In findIng dates for the contInUatIOn of the heanng, they reached settlement where It was possible and the wItnesses and counsel were well prepared for each day of heanng 67 I apprecIate and thank counsel for theIr metIculous presentatIOn of the matenal Dated at Toronto thIS ih day of May 2002 BelInda KIrkwood, Vice-Chair