FPSLREB Decisions

Reasons for Decision

Introduction

1 (Lund-Seong) Alan Liang is complaining that he was not appointed to the position of Citizenship & Immigration Officer – Inland Enforcement in the Canada Border Services Agency (the CBSA) by reason of abuse of authority in the assessment of the merit criteria for the position.

Background

2 The complainant participated in an internal advertised appointment process (No. 06-BSF-IDA-GTA-GTEC-PM-001) for several Citizenship & Immigration Officer – Inland Enforcement positions at the PM-03 group and level in the CBSA in Mississauga, Ontario. Mr. Liang met the education and experience requirements used to screen applicants. He also met the requirements with respect to another four of the merit criteria, which were assessed by written tests.

3 Mr. Liang was invited to an interview which consisted of a role-play scenario to assess the ability to conduct interviews, to evaluate information and to recommend appropriate action, and a question to assess judgement. The ability to effectively communicate orally was also assessed during the interview. Mr. Liang was eliminated from the appointment process based on the assessment of his role-play.

4 On September 15, 2006, Mr. Liang filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under paragraph 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

5 Mr. Liang has raised three allegations pertaining to his complaint. First, he alleges that the assessment board inconsistently enforced the time limit established for the role-play scenario. He alleges that he was prevented from providing a decision for the problem dealt with in the scenario after the allotted time had elapsed, while other candidates were allowed to provide late decisions. Secondly, he alleges that information given to him by an assessment board member in the course of the role-play was different from that given to other candidates, thereby misleading him and obstructing his efforts to conduct the role-play interview and reach a decision. Mr. Liang alleges that these inconsistencies amount to favouritism of some candidates. Thirdly, in his written allegations, Mr. Liang also alleges that there were inconsistencies in the marking scheme used in assessing candidates.

Summary of relevant evidence

6 The complainant testified at the hearing. The complainant did not call any other witnesses. He described the various jobs he has had since his graduation in 1993, including his current employment as a term employee in the CBSA. He also described his participation in the stages of this appointment process, up to and including his interview.

7 The complainant was interviewed on July 12, 2006 by Ms. Carol Hamlyn and another board member. Ms. Hamlyn introduced the role-play scenario, read the instructions and played the role of Mr. Horton, who was to be interviewed by the candidates to determine if his workers’ compensation benefits would continue or not. The other board member took notes.

8 A paper copy of the role-play scenario and the instructions to candidates was given to Mr. Liang and was read aloud by Ms. Hamlyn. The instructions read as follows:

• The purpose of this role play is to assess your ability to conduct interviews, to evaluate information and recommend appropriate action.
• You will have 10 minutes to gather the needed information from the client and come to a decision. (Emphasis added)
• There will be no prompting by the panel.

9 The complainant testified that, after reading the instructions out loud from the paper, Ms. Hamlyn repeated them verbally. He testified that the second time, Ms. Hamlyn said: “You will have 10 minutes to gather the needed information from the client and then come to a decision.” He explained that he did not seek clarification of the instructions because he was not confused about them at the time.

10 The complainant testified that he received a warning when there were two minutes remaining in the time allotted. He wanted to get all possible information, and chose to use the remaining two minutes to continue questioning Mr. Horton. When time was called the board members began organizing their papers and Mr. Liang asked when he could give his decision. He was told that he was supposed to have given a decision during the allotted time. He did not give a decision.

11 At some point after their interviews, Mr. Liang spoke with another candidate who was also interviewed on July 12, 2006. He testified that she told him that she had made the same mistake concerning the time, but that she had been allowed to give her decision. As evidence, he submitted the notes taken during that candidate’s interview, which read, in part: “Gave summary of decision after time ran out.” He also submitted the notes taken during the interview of another candidate, which read, in part, “realized after the int(erview) was over he should have communicated a decision to client, nevertheless it was clear where he was headed.”

12 During his testimony, the complainant referred to the role-play instructions for assessment board members, including “fact” information that was to be disclosed only in response to questions posed by the candidates. He also referred to the notes taken during his role-play and to the notes taken during the role-plays of some successful candidates. The complainant testified that he received misleading information in three areas.

13 First, one of the “facts” that board members were instructed to reveal, if asked, is that Mr. Horton has a large mortgage. Mr. Liang testified that he was not given that impression when he questioned Mr. Horton on his financial situation.

14 Secondly, the instructions to board members state that if the candidate directly asks if Mr. Horton has been working for ABC Construction, Mr. Horton is to respond that he has helped out around the site a little bit, but not a lot because of his back injury. The complainant testified that he asked Mr. Horton if he had done any work for ABC Construction and received an answer in the negative. He explained that the board member recorded only what the candidate said, not what the role-playing board member said. Based on his recollection of his interview, and prompted by the notes that recorded his subsequent questions and comments, the complainant testified that he must have received an answer in the negative.

15 Finally, Mr. Liang testified that he was told that Mr. Horton’s friend works at Customs, but that other candidates were told that the friend worked for, or owned, ABC Construction.

16 The complainant explained that his belief that Mr. Horton’s friend owns, or works for, ABC Construction, and that other candidates were given that information is based on his interpretation of the “fact” information provided to board members and his interpretation of the sequence of questions asked and comments made by other candidates, as recorded in the notes taken during their role-plays. Under cross-examination, he acknowledged that the instructions to board members do not specify that Mr. Horton’s friend owns or works for ABC Construction.

17 Ms. Carol Hamlyn was one of ten assessment board members and acted as the chairperson of the board. She testified on behalf of the President of the CBSA, the respondent. No other witnesses were called by the respondent.

18 Ms. Hamlyn explained that the ability to conduct interviews, to evaluate information and to recommend appropriate action was assessed solely on the basis of a role-play situation in an interview. Twelve criteria were established to assess this ability. Each of the criteria was assigned a weight and the following global assessment/scoring scheme was used: Excellent – 10; Very Good – 8 to 9; Good – 6 to 7; Poor – 3 to 5; Very Poor – 0 to 2. The assessment guide explained: Excellent was for candidates who addressed all major issues/criteria; Very Good was for candidates who addressed most of the major issues and showed no major deficiencies; Good was for candidates who adequately met the criteria and showed no deficiencies of major concern; candidates who addressed few issues and showed some major deficiencies received Poor; and, Very Poor was for candidates who addressed few or no issues.

19 Ms. Hamlyn testified that interviews were conducted by assessment panels consisting of two board members. One panel member played the role of Mr. Horton and the other member took notes. Candidates were given a copy of the role-play, paper and pen/pencil. The role-play scenario and instructions were read aloud to candidates and they were given two minutes to gather their thoughts and make notes before beginning. Candidates were allotted ten minutes to complete the role-play. After each interview, the two panel members reviewed the notes taken and discussed the candidate’s performance. Notes related to each of the twelve assessment criteria were recorded and the panel agreed on a narrative, global assessment and a score.

20 Ms. Hamlyn identified the notes taken to record the panel’s assessment of the complainant as her notes. She also identified the symbols (check marks, x’s, dashes and arrows) she used in her notes. When asked, under cross-examination, if she recalled telling Mr. Liang that each check mark meant a point given, Ms. Hamlyn explained that a check mark beside a criterion meant that the candidate had addressed that criterion. Marks were awarded based on the narrative, global assessment by the panel.

21 Referring to her assessment notes of the complainant’s role-play, Ms. Hamlyn testified that the complainant had met some of the criteria; he remained composed and he used some proper interviewing techniques, such as mirroring and open and closed questions. He also acknowledged Mr. Horton’s concerns. However, he did not give an introduction or explain the purpose of the interview. He did gather financial information and he did remain focused; however, he focused on areas that were not relevant to reaching a decision, thereby not allowing himself sufficient time to explore other relevant information in the time allotted. He failed to communicate a decision to Mr. Horton and he made irrelevant comments during the interview. The panel assessed the complainant as Poor and awarded a score of four out of a possible ten marks. The pass mark was six out of ten.

22 Ms. Hamlyn testified that the first interviews were held on July 10, 2006. Following the first day of interviews, the assessment board met. A review of the first day’s interviews revealed that two panel members had allowed marks for decisions given after the ten minutes allotted for the role-play. Ms. Hamlyn testified that this was corrected and that no marks were given for the late decisions. She met with the board members on July 11, 2006 and instructed them that decisions had to be given within the ten minutes allotted for the role-play. No marks were to be given for late answers.

23 Ms. Hamlyn was cross-examined and re-examined on this issue. She explained that her instructions to board members were not that they were to ensure candidates did not give a late decision, but rather that they were to make sure that the role-play instructions were read to candidates and that no marks were to be given for late answers. When asked why board members’ notes for some candidates interviewed after July 11, 2006 showed that they had given late decisions, Ms. Hamlyn stated that those candidates did not get any marks for late decisions. When questioned further, Ms. Hamlyn stated that candidates who were coming to a conclusion at, for example, ten minutes and twelve seconds were allowed to finish their thoughts.

24 In his written allegations, the complainant identified a specific candidate as having been favoured in that she was permitted to give her decision after the time had elapsed. The candidate was interviewed on July 12, 2006. Ms. Hamlyn testified that, subsequent to receiving this allegation, she contacted one of the panel members who assessed that candidate. Ms. Hamlyn testified that, based on her communication with the panel member, she was satisfied that the candidate did not receive marks for her late decision. Neither the complainant nor the respondent called this candidate as a witness at the hearing of this complaint. The panel member who assessed this candidate was also not called as a witness at the hearing.

25 Ms. Hamlyn testified concerning the measures that were taken to ensure consistency in the assessments of candidates by multiple panels. She explained that, prior to the commencement of the interviews, the assessment board met and reviewed the role-play scenario and the instructions. After each interview, the two panel members reviewed the notes taken and discussed the candidate’s performance. Notes related to each of the assessment criteria were recorded and the panel agreed on a global, narrative assessment and a score. To further ensure consistency, the members were reassigned to different panels each day and the panels compared their assessments with those of other panels.

26 Ms. Hamlyn testified that, after the first series of approximately seventy‑five interviews, those assessment board members who were available met with the Director responsible for the selection of candidates for appointment. The notes and scores from approximately eight randomly chosen files were reviewed to check for consistency in how the assessments had been done. This exercise was repeated after another series of interviews had taken place. Under cross-examination, Ms. Hamlyn testified that, in the first review of approximately eight files, there may have been one or two inconsistencies that were identified and corrected.

27 Ms. Hamlyn confirmed that certain scripted “facts” were to be elicited through the candidate’s questions and had to be provided to candidates in response to their questions. She testified that board members were instructed to ad lib if candidates asked questions for which “facts” were not provided in the material. She testified that these instructions were followed during the complainant’s interview.

28 Under cross-examination, Ms. Hamlyn confirmed that the “fact” that Mr. Horton had a large mortgage was important. She testified that she did not recall giving the complainant a dollar amount when asked about Mr. Horton’s mortgage during the role-play. She also testified that she did not recall whether she failed to tell the complainant that Mr. Horton had a large mortgage.

Arguments of the parties

29 The Public Service Commission (the PSC) did not submit evidence or present arguments related to the facts of this case. It did, however, make arguments concerning the recourse available under the PSEA; to which both the complainant and the respondent responded. Arguments related to the facts of this case are addressed in the sections of this decision dealing with the specific issues of the complaint.

30 The PSC argues that the Tribunal should adopt a narrow definition of abuse of authority since subsections 77(1) and 15(3), and section 67 of the PSEA, are all recourses available after an internal appointment has been made or proposed. The PSC argues that recourse to the Tribunal under subsection 77(1) is not meant to include errors and omissions, since the mechanisms for remedying errors and omissions are set out under subsection 15(3) and section 67.

31 The respondent submits that there is no recourse available under subsection 15(3) of the PSEA. The respondent argues that section 15 provides strictly for the delegation of authority to deputy heads, and includes the authority to both make and revoke appointments. While subsection 15(3) provides that revocation and corrective action can only occur after an investigation, the deputy head is not obligated to investigate. Moreover, section 15 does not provide a right for any person to make a complaint to the deputy head. The respondent argues that Parliament was clear in its intention to provide one avenue of recourse for internal appointments, which is expressly set out under subsection 77(1) of the PSEA.

32 The complainant argues that subsection 15(3) of the PSEA allows deputy heads to investigate staffing processes and to revoke an appointment and take corrective action if the deputy head is satisfied that an error, omission or improper conduct affected the selection of a person for appointment. Subsection 67(1) grants the PSC similar powers with respect to non-delegated internal appointment processes. The complainant argues that neither of these provisions provides recourse rights to employees, and the only recourse available to employees is a complaint to the Tribunal under section 77 of the PSEA.

Analysis

33 In Black’s Law Dictionary, 8th ed., s.v. “recourse,” recourse is defined, in part, as “a method for enforcing a right.” Similarly, in Webster’s New World Law Dictionary, 2006, s.v. “recourse,” recourse is defined as follows: “A course of action for enforcing a claim.”

34 Dictionary definitions are helpful but the best indication of Parliament’s intent is found in the language of the Act, as the Federal Court established in addressing the meaning of “recourse” in the circumstances of a recourse procedure established by the then Canada Customs and Revenue Agency, Anderson v. Canada (Customs and Revenue Agency) (2003), 234 F.T.R. 227 (T.D.), [2003] F.C.J. No. 924, at para. 34 (Q.L.); aff’d, [2004] F.C.J. No. 538 (C.A.)(Q.L.), 2004 F.C.A. 126.

35 The intent of Parliament can be found in the specific language of the PSEA. The relevant provisions of the PSEA are subsections 77(1) and (2), 15(1) to (3), 67(1) and 88(2) as well as sections 81, 99, 101 to 103 and 109.

36 Subsection 77(1) of the PSEA provides that persons may make a complaint to the Tribunal. This right to complain is limited under subsection 77(1) to persons in the area of recourse, and “area of recourse” is defined in subsection 77(2). The PSEA clearly provides a right for certain persons to complain to the Tribunal following an internal appointment or proposed appointment.

37 The language of section 15 of the PSEA, on the other hand, reveals no such right for any person affected by an internal appointment. Rather, section 15 provides for the delegation of authority from the PSC to deputy heads, including the authority to make and revoke internal appointments, and take corrective action. Subsection 15(3) provides that corrective action or revocation is only to occur after an investigation. While section 15 does not preclude an employee from asking a deputy head to investigate an internal appointment process, it does not grant an employee a right to make such a request, and it is at the discretion of the deputy head to conduct an investigation or not.

38 Subsection 67(1) of the PSEA authorizes the PSC to investigate non-delegated internal appointment processes, revoke or not make the appointment, and take corrective action. Again, while an employee can request an investigation; the provision does not establish any right to make such a request or to compel the PSC to conduct an investigation.

39 The language of the PSEA clearly establishes only one provision conferring a right to complain about an internal appointment process, namely, recourse to the Tribunal under section 77 of the PSEA.

40 The PSEA also establishes the framework for enforcing the right to make a complaint. Subsection 88(2) mandates the Tribunal to “consider and dispose of complaints” made under section 77. Section 99 sets out the powers of the Tribunal in relation to a complaint. Section 109 confers power on the Tribunal to make regulations with respect to its complaint process. If a complaint is substantiated, section 81 sets out the powers of the Tribunal in terms of remedies that it can provide. Section 101 establishes a requirement for the Tribunal to issue a written decision on a complaint. Section 102 provides for finality of Tribunal decisions; and, section 103 enables Tribunal orders to be filed with the Federal Court for enforcement purposes. Thus, reviewing the language of the PSEA, it is clear that Parliament intended that certain persons would have a right to complain following internal appointments and proposed appointments, and that there would be a complete framework for addressing these complaints. The recourse Parliament established for internal appointments begins with a complaint to the Tribunal under section 77 of the PSEA and ends with the disposition of the complaint by the Tribunal.

Issues

41 With respect to the complaint before the Tribunal, the following questions must be answered:

1. Was the assessment board inconsistent in its application of the time limits for the role-play scenario and, if so, does this constitute an abuse of authority?
2. Did the assessment board give the complainant information different from that given to other candidates during the role-play and, if so, does this constitute an abuse of authority?
3. Are there inconsistencies in the marking scheme for the role-play and, if so, does this constitute an abuse of authority?

Issue I: Was the assessment board inconsistent in its application of the time limit for the role-play scenario and, if so, does this constitute an abuse of authority?

Submissions

42 The complainant submits that the assessment board abused its authority when it prevented him from giving his decision in the role-play scenario after the allotted ten minutes, while other candidates were not prevented from doing so, as shown in the assessment notes taken for two other candidates. By inconsistently applying the time limit, the assessment board favoured some candidates over him. The complainant emphasized that the two interviews submitted as evidence of this took place after July 11, 2006, when the respondent claims to have corrected this problem.

43 The respondent acknowledges that there was a problem with the application of the time limit on the first day of interviews, July 10, 2006, when two panel members gave marks for decisions provided after the allotted time had elapsed. The respondent submits that on July 11, 2006, this mistake was corrected, board members received further instructions, and no candidates received marks for late decisions.

Analysis

44 The fact that the complainant was not permitted to give his decision in the role-play scenario after the allotted ten minutes had elapsed is not in dispute. Nor is there any dispute that some successful candidates did provide their decisions after the permitted time. What is essential to determine is whether any candidate was provided an advantage, or was favoured, by receiving a better assessment, or a higher score, because the assessment board recognized, and awarded marks for, a late decision.

45 The respondent explained that the error in applying the time limit was uncovered after the first day of interviews, that the marks of the candidates in question were corrected and that, while candidates were not stopped from concluding their decisions after the time limit, none were awarded marks for their late decisions. The complainant did not refute the respondent’s evidence by providing evidence that any candidate received marks for a late decision.

46 In Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, the Tribunal highlighted that the burden is on the complainant to prove abuse of authority, on a balance of probabilities:

[53] (…) The party with the onus on an issue must prove the matter on the civil standard of a balance of probabilities. Accordingly, if the evidence is such that the Tribunal can say that it is more probable than not, then the burden is discharged.

47 Thus, the burden is on the complainant to prove, on a balance of probabilities, that the assessment board was inconsistent in its application of the time limit and this, in turn, amounted to an abuse of authority. The complainant has not done so here. On the contrary, the Tribunal finds that there was no inconsistency in the application of the time limit with respect to candidates’ assessments that led to the awarding of marks for late decisions. Accordingly, the complaint of abuse of authority on this ground is not substantiated.

Issue II: Did the assessment board give the complainant information different from that given to other candidates during the role-play and, if so, does this constitute an abuse of authority?

48 The complainant submits that the assessment board abused its authority by deciding to disregard the instructions regarding the role-play and give him information which was different from that given to other candidates. He submits that the information he was given misled him, and negatively affected his performance in the role-play. Other candidates, who were given the proper information, were able to perform well in the role-play.

49 The respondent submits that this allegation is based on the complainant’s assumptions and interpretations of notes taken during other candidates’ interviews. The complainant was not at these interviews, and he did not attempt to verify his assumptions and interpretations with the authors of those notes.

50 The respondent further submits that the complainant admitted, under cross-examination, that he was incorrect in his interpretation of one of the “facts” from the instructions to panel members, namely, that Mr. Horton’s friend owns or works for ABC Construction

Analysis

51 The instructions to board members state that the role-playing member should only answer the questions asked by a candidate. Board members were further instructed to disclose certain “facts” in response to direct questions, where such “facts” were provided in the instructions. In the event that a candidate asked questions for which no “facts” had been provided, board members were instructed to improvise.

52 It is for the candidate, in his or her role as interviewer, to decide what questions to ask. The candidate’s questions will determine what information is disclosed. Depending on the questions asked, and how they processed the information received, candidates would likely receive some different information and in a different sequence.

53 The complainant submits that the assessment board did not follow the instructions and failed to disclose three important “facts” that were necessary to his successful performance in the role-play, namely: that Mr. Horton had a large mortgage; Mr. Horton did some work for ABC Construction; and, information related to where Mr. Horton’s friend worked. The evidence shows that the complainant misinterpreted one of the “fact” statements in question. He asked a question about Mr. Horton’s friend’s occupation. Since this information was not part of the “facts” of the scenario, the board member improvised, in accordance with the instructions.

54 The complainant did not testify as to precisely what mortgage information he was given. He did testify that he was not given the impression that it was a large mortgage. Ms. Hamlyn testified that she did not recall the details of Mr. Liang’s role-play with respect to the matter of Mr. Horton’s mortgage.

55 Mr. Liang further testified that he must have been told that Mr. Horton had not done any work for ABC Construction. Ms. Hamlyn was not questioned about Mr. Liang’s role-play as it related to Mr. Horton’s work for ABC Construction.

56 The notes recorded by the second panel member during the complainant’s role-play were presented as evidence at the hearing. Mr. Liang testified about what he was told during the role play based, in part, on his interpretation of those notes. The notes record only what the complainant said during the role-play, and not what was said by the role-playing panel member. The panel member who authored these notes did not testify before the Tribunal.

57 The Tribunal has explained, in Portree v. Deputy Head of Service Canada et al., [2006] PSST 0014, that convincing evidence is necessary for a finding of abuse of authority, and that the Tribunal is not an investigative body and is not mandated to find facts and uncover evidence on behalf of a complainant:

[47] An allegation of abuse of authority is a very serious matter and must not be made lightly. In summary, in order to succeed before the Tribunal, a complaint for abuse of authority must demonstrate on a balance of probabilities a serious wrongdoing or flaw in the process that is more than a mere error, omission or improper conduct that justifies the Tribunal’s review and intervention.

[48] Although the PSEA gives the Tribunal broad powers in relation to any matter before it, it is not an investigative body. Accordingly, it is not mandated to go on a fact-finding mission on behalf of a complainant. (…)

[49] Employees who allege that there has been an abuse of authority and, thus, a contravention of the PSEA and who wish to obtain a remedy for that contravention must present convincing evidence and arguments to be successful. (…)

58 The Tribunal has no reason to doubt that the complainant believes his recollections, interpretations and impressions. His testimony was that he arrived at his conclusions largely by drawing inferences from the notes recorded during his interview, and other candidates’ interviews. He has not, however, presented any clear, convincing evidence that he was misdirected by the assessment board. The Tribunal is not satisfied that the complainant has proven, on a balance of probabilities, that he was given different information from other candidates in terms of the size of Mr. Horton’s mortgage or the extent of his work for ABC Construction. The information he was given concerning where Mr. Horton’s friend worked, was an improvisation in accordance with the instructions to board members.

59 Thus, there is clearly insufficient evidence that Ms. Hamlyn provided the complainant with “fact” information that was different from what other candidates received from the panel members playing the role of Mr. Horton. Accordingly, the complaint of abuse of authority on this ground is not substantiated.

Issue III: Are there inconsistencies in the marking scheme for the role-play and, if so, does this constitute an abuse of authority?

Submissions

60 The complainant filed this allegation with the Tribunal prior to the hearing. He did not provide any direct evidence related to this issue.

61 The respondent’s witness, Ms. Hamlyn, was cross-examined on the application of the marking scheme in Mr. Liang’s role-play. She explained the narrative and scoring scheme that was used to assess candidates in the role-play scenario, and elaborated on its application in assessing the complainant.

Analysis

62 The complainant did not tender any evidence, nor did he present any argument on this issue. Ms. Hamlyn testified about the circumstances surrounding the development and application of the marking scheme. She testified that all candidates were assessed for the role-play in the same manner.

63 The complainant presented no evidence to refute the respondent’s evidence. The onus on this issue rests with the complainant to prove on a balance of probabilities that there were inconsistencies in the marking scheme amounting to an abuse of authority. He has failed to do so and, therefore, his complaint of abuse of authority on this ground is not substantiated.

Decision

64 For the reasons set out above, the complaint of abuse of authority cannot be substantiated on any of the grounds raised by the complainant. The complaint is dismissed.

Merri Beattie

Member

Parties of Record

Tribunal File:

2006-0124

Style of Cause:

Alan Liang and the President of the Canada Border Services Agency et al.

Hearing:

May 14-15, 2007
Toronto, Ontario

Date of Reasons:

July 13, 2007

Appearances:

For the complainant:

Michelle Tranchemontagne

For the respondent:

Lesa Brown

For the Public
Service Commission:

Kimberly Lewis