FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainants, Diane Cameron and André Maheux, allege abuse of authority in the choice of a non-advertised appointment process and in the application of merit under subsection 30(2) of the Public Service Employment Act (the PSEA), S.C. 2003, c.22, ss. 12 and 13. In their view, the respondent showed favouritism towards the person appointed, and acted in bad faith.

2 On November 24, 2006, the complainants filed these complaints following the notice of appointment of Lynda Bouchard to the position of Regional Insurance Advisor, PM-04. Ms. Bouchard was appointed to the position on an acting basis, following a non-advertised appointment process (process No. 2006‑CSD-AP-QUE-DRSP-210) in the Department of Human Resources and Social Development (Service Canada).

3 The complaints were filed under section 77 of the PSEA. The respondent is the Deputy Head of Service Canada.

4 Under section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-06 (the PSST Regulations), the Tribunal consolidated the two complaints on January 30, 2007.

Background

5 In 2006, the Assistant Deputy Minister decided to hold an advertised internal appointment process to staff positions for regional specialists in entitlement and appeals to boards of referees, group and level PM-04, on an indeterminate basis for the entire Quebec Region. The respondent decided to staff one of the positions on an acting basis for a period of less than four months. Ms. Bouchard was appointed, and her acting appointment was subsequently extended through a non-advertised internal appointment process. It is the extension of the acting appointment that is the subject of these complaints.

Summary of relevant evidence

6 Daniel Bourbonnais, former incumbent of the position of Regional Insurance Advisor, testified for the complainants. He explained that he informed his employer on January 27, 2006 that he would be retiring, and that his last day of work would be May 31, 2006. He stated that his responsibilities included, in particular:

• administering boards of referees in Quebec;
• training the members of such boards of referees; and,
• touring the 24 boards of referees in Quebec with Serge Guérin.

7 Mr. Bourbonnais explained that arranging the regional tour required three months of preparation with respect to schedules, the availability of members, the agenda and the preparation of material, the content of which had to be adapted for the region.

8 When Mr. Bourbonnais received confirmation of his retirement date, he posted it on his office cubicle in full view of all his colleagues in the workplace.

9 Daniel Robillard, a witness for the complainants, has been the incumbent of a Regional Insurance Advisor position in Repentigny since 1997. He provided training in this region in 1998 and 1999. From 2002 to 2004, he was assigned on an acting basis to the Regional Insurance Advisor position that is the subject of these complaints. He stated that he teleworked throughout his assignment as Regional Insurance Advisor.

10 Mr. Robillard qualified in a competition in 2004 for the indeterminate staffing of the Regional Insurance Advisor position. He was subsequently offered an indeterminate position, but had to decline because management had decided that telework was not an option. He went back to his position in the local office in Repentigny.

11 Mr. Robillard expressed interest in the Regional Insurance Advisor position, group and level PM-04, when he learned of Mr. Bourbonnais’ imminent retirement. He did so on two occasions. First, he sent an e-mail to Christiane Brosseau, Director, Programs and Services, in February 2006, expressing his interest. Second, he sent an e-mail to Johanne Domingue when he learned that she was to replace Ms. Brosseau.

12 Ms. Domingue, witness for the respondent, was Acting Director, Programs and Services. When she arrived in March 2006, she was told that Mr. Bourbonnais would be retiring at the end of May 2006. Shortly thereafter, Ms. Domingue met with staff members to review all the files and expected absences and departures.

13 Serge Guérin, witness for the complainants, is a Regional Advisor, and Mr. Bourbonnais’ colleague. At a meeting with Ms. Domingue in March 2006, Mr. Guérin shared his concerns about Mr. Bourbonnais’ departure. He told Ms. Domingue that a tour of the boards of referees was planned for the fall of 2006, and that Mr. Bourbonnais and he were to share that task. He explained that the task was too much for him to accomplish alone, and that he would need support to complete the work. He also told her of the responsibilities that were incumbent upon him:

• administration of the 24 centers of boards of referees, which include 280 to 320 members whose apppointments are three-year renewable terms;
• responsibility for administrative matters, the mediation and conflict resolution service, investigations and the resulting reports;
• the initial training of new members, which involves two sessions lasting three to four days each;
• technical support for case preparation and to the clerks that assist the boards;
• the annual tour of boards of referees, and, more specifically, information to members on:
  • new case law;
  • changes of all kinds; and,
  • hearing procedures.

14 Ms. Domingue met with Mr. Bourbonnais shortly after she arrived in management. Mr. Bourbonnais testified that, contrary to what the complainants were told during the informal discussions, he did not recommend Ms. Bouchard to Ms. Domingue as his replacement. He explained that he was not in a position to recommend Ms. Bouchard because he did not know her very well. According to Mr. Bourbonnais, he received calls from Ms.Bouchard more frequently than from most of his other colleagues, and the kinds of questions she asked revealed her lack of experience and knowledge.

15 Ms. Domingue was informed in May 2006 that the advertised internal appointment process to staff Mr. Bourbonnais’ position was to be combined with another appointment process in order to staff similar positions. She knew then that the advertised appointment process would take six to nine months to complete, and would not be finalized until the fall, or even later.

16 Since Mr. Robillard had not received a reply to his e-mail to Ms. Domingue, he called to ensure that she was aware of his interest in the position. Under cross-examination, Ms. Domingue confirmed that she knew Mr. Robillard was interested in the position and that he had indeed contacted her. As to why she did not consider him for the position, she replied that she was looking for someone with experience.

17 The complainant, Ms. Cameron, stated that when she filed her complaint she had been the incumbent of a PM-03 Consultant/Technical Expert position in a local office since 1994. She and Ms. Bouchard were members of the same team and performed the same duties. These duties consist mainly of reviewing appeals, processing data entries, training new members, as well as the general training of officers at level 1 and level 2.

18 Ms. Cameron testified that Carole Mercier had been their supervisor since April 10, 2006, and was present in the workplace one or two days a week. The complainant also indicated that Ms. Mercier had never supervised Ms. Bouchard or herself in the past.

19 At the end of May 2006, Ms. Cameron and Ms. Bouchard attended a two-day regional meeting in Magog. At that meeting, Ms. Cameron noticed that Ms. Bouchard was always seated at the senior regional management’s table.

20 Ms. Domingue testified that during that same meeting, Ms. Robert, another manager, wholeheartedly recommended Ms. Bouchard to her. Ms. Robert introduced her to Ms. Domingue, saying: “I have been singing her praises for a long time, I have told you about her; I am now introducing her to you.” [Translation]

21 In the first week of June 2006, Ms. Domingue contacted Ms. Mercier to assess Ms. Bouchard’s knowledge and, in particular, her ability to use the technological tools required for the position. The telephone conversation with Ms. Mercier lasted about 45 minutes.

22 Ms. Domingue testified that she did not conduct any other check or assess Ms. Bouchard’s essential qualifications because, in her view, she met the merit criteria. She therefore appointed Ms. Bouchard for a period of less than four months, beginning on June 20, 2006.

23 In June 2006, complainant André Maheux called Mr. Bourbonnais’ previous telephone number. It was then that he learned from Ms. Bouchard herself that she had been appointed to the Regional Insurance Advisor position. At that time, management had not yet officially informed staff members of Ms. Bouchard’s appointment. During that telephone conversation, he learned that Ms. Bouchard would have the possibility to telework, and would not therefore have to move in order to be present in the workplace.

24 Mr. Maheux stated that he was surprised by Ms. Bouchard’s appointment as a Regional Insurance Advisor since she had not quite two years’ experience in the position of Consultant/Technical Expert. In fact, from the questions she asked, she did not seem to him to have much experience when he taught her in 2004 during basic training to enable participants to resolve the most common contentious claims. He also gave her follow-up training on the preparation of appeals to boards of referees, and an advanced communication course.

25 Mr. Maheux believes that the position requires more experience than Ms. Bouchard’s two years of experience. As an example, he cited his own experience as a local advisor for 10 years, and the fact that he had 26 years’ experience in the field of insurance benefits. He stated that, in that capacity, he is called upon to deal with contentious appeal cases from the biggest regional office in Quebec. He was also appointed to represent the Quebec Region when an appeals delivery and management system was implemented.

26 According to Mr. Maheux, his colleagues in the Quebec Region who, like him, provide training are all qualified to occupy the position of Regional Insurance Advisor left vacant by Mr. Bourbonnais’ departure.

27 Shortly after the meeting in Magog, Ms. Cameron noted that Ms. Bouchard was absent from her work unit. She asked Ms. Mercier about this. Ms. Mercier avoided answering her questions, but eventually told her that Ms. Bouchard was on vacation. Ms. Cameron asked Ms. Mercier whether Ms. Bouchard had changed her vacation plans since the schedule indicated that Ms. Bouchard was to be on vacation in August 2006. Following Ms. Cameron’s persistence, Ms. Mercier told her that Ms. Bouchard had left the work unit.

28 Mr. Guérin testified that Ms. Domingue informed him in the week of June 19, 2006 that Ms. Bouchard would be replacing Mr. Bourbonnais, and that she would begin by observing and subsequently take over. Ms. Domingue also informed him that Ms. Bouchard would be accompanying him on the tour of the boards of referees in the fall of 2006, and would share the files with him.

29 Mr. Guérin spoke about the tour of the boards of referees, the planning required and Ms. Bouchard’s involvement in organizing the tour in the fall of 2006. In essence, he organized, planned and prepared the material required for the tour, whereas Ms. Bouchard merely observed. She observed the first three or four sessions of the tour, while he acted as instructor. She subsequently managed the other sessions alone.

30 On October 6, 2006, Ms. Bouchard’s appointment was extended until March 31, 2007. Ms. Domingue testified that Mr. Bourbonnais’ retirement constituted an urgent situation therefore she considered only Ms. Bouchard as a candidate for the position.

31 Ms. Domingue prepared the rationale for the non-advertised appointment process, and submitted it to Johanne Brault, who signed it on October 13, 2006. She prepared the rationale for the full term of Ms. Bouchard’s acting appointment, from June 20, 2006 to March 31, 2007.

32 The rationale has to be in compliance with the departmental criteria and respect for the values of fairness, transparency and access of the Department’s Criteria for Non-Advertised Appointment Processes Policy. Ms. Domingue stated that she followed the criteria for seeking authorization to make a term appointment, which indicate that the manager seeking such authorization must address the following issues:

• the selection method chosen;
• the rationale for a term appointment;
• the values to be respected;
• budgetary considerations; and,
• the management of priorities.

Issues

33 The Tribunal must decide the following issues:

1. Did the respondent act in bad faith by selecting a non-advertised appointment process when Ms. Bouchard’s appointment was extended?
2. Did the respondent abuse its authority by relying on insufficient material in assessing Ms. Bouchard with a view to extending her appointment?
3. Did the respondent show personal favouritism in assessing Ms. Bouchard?

Arguments of the parties

A) Complainants’ arguments

34 In their arguments, the complainants addressed the following issues: the choice of a non-advertised process; the respondent's assessments of Ms. Bouchard’s qualifications in June and October 2006; and, the remedy sought.

35 The complainants maintain that the choice of a non-advertised process was biased and based on a rationale containing significant falsehoods, particularly the urgency cited by the respondent attributed to unexpected retirements and absences related to sick leaves. According to the complainants, the facts cited by the respondent had been known for at least seven months, namely since March 2006, when Ms. Domingue took up her duties as Acting Director.

36 The complainants assert that there is clear evidence that the situation was not urgent. Moreover, the respondent knew that Ms. Bouchard’s appointment would be extended since she was to take part in the tour of boards of referees in the fall.

37 According to the complainants, the respondent did not have sufficient information to assess Ms. Bouchard in relation to highly complex duties. Ms. Mercier was not in a position to assess Ms. Bouchard against the merit criteria since she had supervised her for only a brief period.

38 The complainants maintain that the respondent quite obviously sought to favour Ms. Bouchard, and took the necessary steps to ensure that she obtained the position.

39 In conclusion, the complainants request that the Tribunal allow the complaints. As a remedy, Ms.Cameron is requesting training and a work placement at the same level as the position in question. Mr. Maheux requests a statement from the Tribunal indicating that the respondent abused its authority.

B) Respondent’s arguments

40 The respondent argues that Ms. Domingue chose a non-advertised process because of the urgency of the situation. The respondent maintains that the urgent nature of the situation justifies the choice of a non-advertised process. According to the respondent, the complainants failed to show that the choice of a non-advertised process was tainted by bad faith or revenge.

41 The respondent argues that the Tribunal has acknowledged the broad discretion of deputy heads with respect to the choice of assessment methods, provided such methods were not used to favour or disfavour a candidate. The respondent relies on Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011, which deals with assessment methods.

42 The respondent maintains that Ms. Domingue was not obliged to take into consideration more than one person. The respondent claims that Ms. Domingue had sufficient information and positive comments with respect to Ms. Bouchard’s work in the four months of the acting appointment to form an opinion.

43 The respondent asserts that Ms. Domingue showed during her testimony that the assessment of Ms. Bouchard was based on her observations over a four-month period, as well as on comments received from various people. The way in which Ms. Bouchard was assessed is perfectly valid, and the PSEA does not prescribe or require a specific assessment method.

44 According to the respondent, the complainants did not produce any evidence to establish that Ms. Bouchard does not meet the merit criteria, or that she lacks the requisite qualifications for the position. Moreover, the complainants did not prove personal favouritism since there is no evidence of friendship or family ties between Ms. Bouchard and Ms. Domingue.

45 Lastly, the respondent maintains that the Tribunal does not have sufficient evidence to conclude that there was an abuse of authority, and should dismiss the complaint.

46 With respect to the remedy requested by Ms. Cameron, the respondent maintains that the Tribunal does not have jurisdiction to order her appointment to a position.

C) Public Service Commission’s Arguments

47 On the basis of the legislative framework, and modern principles for interpreting legislation and case law on the concept of abuse of authority, the Public Service Commission (the PSC) argues that for an action to constitute abuse of authority in the context of an appointment process, there must be deliberate negligence in the exercise of an official function, combined with the knowledge that such deliberate negligence is likely to cause harm to the complainant.

48 According to the PSC, which relies on Finney v. Barreau du Québec, [2004] 2 S.C.R. 17,[2004] S.C.J. No. 31 (QL), bad faith may be imputed in cases of serious carelessness or recklessness, leaving the Tribunal to conclude that abuse of authority occurred in such cases. According to this approach, the Tribunal would be in a position to allow complaints in the most serious cases of carelessness or recklessness, thus limiting the definition of abuse of authority in a manner consistent with the spirit of the legislative scheme of the PSEA.

49 The PSC maintains that the respondent complied with the department’s Criteria for Non-Advertised Appointment Processes Policy which demonstrates that the criteria and values with respect to appointments found were respected in accordance with the PSEA.

50 The PSC supports the respondent's position with respect to the remedy sought by Ms. Cameron. Lastly, the PSC urges the Tribunal not to make a ruling on the remedy sought, if the complaint is dismissed.

Analysis

Issue 1: Did the respondent act in bad faith by selecting a non-advertised appointment process when Ms. Bouchard’s appointment was extended?

51 The complaints were made under paragraph 77(1)(b) of the PSEA concerning the choice of a non-advertised appointment process. Paragraph 77(1)(b) reads as follows:

77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

[...]

(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process;

[...]

52 The PSEA does not define “abuse of authority”, but subsection 2(4) states: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

53 Bad faith and personal favouritism are among the most serious forms of abuse of authority. Parliament specifically referred to bad faith and personal favouritism in subsection 2(4) of the PSEA in order to make it clear that such improper behaviour constitutes abuse of authority. See Glasgow v. Deputy Minister of Public Works and Government Services Canadaet al.,[2008] PSST 0007.

54 The PSC rightly refers to Finney, which deals with bad faith. In Finney, the Supreme Court had to rule on a question of extra-contractual liability on the part of a public body, namely the Barreau du Québec. The Barreau du Québec enjoys partial immunity under the Professional Code, which prohibits prosecutions of professional orders and their officers and staff for acts engaged in good faith in the performance of their duties. The Supreme Court held that it would be contrary to the fundamental objective of protecting the public which is provided in the Professional Code if this immunity were interpreted as requiring evidence of malice or intent to harm in order to rebut the presumption of good faith.

55 The concept of fault is very important with respect to questions of civil liability, therefore such questions are not to be confused with those concerning administrative law in general. However, Finney is general in its application when it comes to evidence of bad faith. The Supreme Court found that it was not necessary to show intentional fault in order to establish bad faith, and that the latter should be interpreted more broadly to include serious carelessness or recklessness. The Supreme Court held as follows, at paragraphs 37 and 39 (QL version):  

37. What, then, constitutes bad faith?  Does it always correspond to intentional fault?  The courts do not appear to equate the state or acts of bad faith squarely with a demonstrated intent to harm another or, consequently, to require evidence of intentional fault.  That direct linkage is made only in the case law relating to punitive damages under s. 49 of the Charter of Human Rights and Freedoms, R.S.Q., c. C‑12. [...]

39. These difficulties nevertheless show that the concept of bad faith can and must be given a broader meaning that encompasses serious carelessness or recklessness.  Bad faith certainly includes intentional fault, a classic example of which is found in the conduct of the Attorney General of Quebec that was examined in Roncarelli v. Duplessis, [1959] S.C.R. 121.  Such conduct is an abuse of power for which the State, or sometimes a public servant, may be held liable.  However, recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed.  The act, in terms of how it is performed, is then inexplicable and incomprehensible, to the point that it can be regarded as an actual abuse of power, having regard to the purposes for which it is meant to be exercised (Dussault and Borgeat, supra, vol. 4, at p. 343). [...]

56 Thus, bad faith could be established by evidence of acts so exceptional that the Tribunal cannot conclude that they were carried out in good faith, because they are inexplicable and incomprehensible in light of the PSEA.

57 As the Supreme Court subsequently explained, bad faith can be established both by circumstantial evidence and by direct evidence of intent to harm. In fact, in Entreprises Sibeca Inc. v. Frelighsburg (Municipality), [2004] 3 S.C.R. 304,[2004] S.C.J. No. 57 (QL), at paragraph 26, the Supreme Court held:

26. Based on this interpretation, the concept of bad faith can encompass not only acts committed deliberately with intent to harm, which corresponds to the classical concept of bad faith, but also acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith.  What appears to be an extension of bad faith is, in a way, no more than the admission in evidence of facts that amount to circumstantial evidence of bad faith where a victim is unable to present direct evidence of it.

58 Since intent to harm has not been established by direct evidence, the Tribunal considered all the actions taken in this case in order to determine whether they amount to circumstantial evidence of bad faith.

59 The respondent pointed out that, although the situation had been known since March 2006, the urgency arose in October 2006 when Mr. Guérin needed help. In support of this assertion, the respondent tendered into evidence a document entitled “Rationale – non-advertised appointment process” [Translation] prepared in October 2006 by Ms. Domingue.

60 In that document, the respondent justifies Ms.Bouchard’s appointment as follows:

2. Rationale

A. The most relevant departmental criteria in this case are:

[...] a number of unforeseen extended sick leaves and retirements require an immediate replacement in order to be able to deliver service to our clients. [...]

B. The values to be respected are:

No personal or political favouritism, the decision justifying the choice of a non-advertised process for this acting appointment of more than four months takes into account the urgency and immediate need to support the processing teams [...]

[Translation]

(Bold and italics added)

61 Uncontradicted evidence shows, however, that Ms. Domingue had been aware since she took up her duties in March 2006 that Mr. Bourbonnais would be retiring at the end of May 2006. Mr. Bourbonnais announced his intention to retire on January 27, 2006. It therefore could not be a surprise. It is illogical to claim that an urgent situation existed, when the facts show that the situation had been known for some time.

62 Moreover, Mr. Guérin forwarded to Ms. Domingue a description of the duties of a Regional Insurance Advisor within a few weeks of her arrival in March 2006. Ms. Domingue was informed at that time that the need to staff Mr. Bourbonnais’ position was directly related to operational requirements, since Mr. Guérin needed help with the tour of boards of referees scheduled to take place in the fall. Mr. Guérin also let her know that it took three months to prepare for the tour of boards of referees in the fall. Ms. Domingue thus had this additional information showing the need to staff the position for a longer period than four months less a day.

63 Ms. Domingue was also informed in May 2006 that the position left vacant by Mr. Bourbonnais’ departure would not be staffed in less than six to nine months, since she had to combine an internal appointment process with another process to staff similar positions. Consequently, when Ms. Domingue appointed Ms. Bouchard in June 2006, she knew that there was a foreseeable need and she was aware of the operational requirements. Ms. Domingue nevertheless appointed Ms.Bouchard on an acting basis for a period of less than four months. Knowing that the position had to be staffed for a period of six to nine months, she could have chosen to appoint someone else.

64 In June 2006, Ms. Domingue informed Mr. Guérin that Ms. Bouchard would be replacing Mr. Bourbonnais, that she would observe the preparations for the tour of boards of referees, as well as the initial sessions, and that she would subsequently act in the same capacity as Mr. Bourbonnais had in the past, since the tour was to begin in the fall of 2006. These facts support a conclusion that Ms. Domingue intended to appoint Ms. Bouchard for a period of more than four months.

65 Given all these facts, demonstrating a situation that was foreseeable and had been known for months, the Tribunal cannot accept that an urgent situation existed, as the respondent maintains. Mr. Bourbonnais’ retirement had been anticipated since January 2006, and Ms. Domingue had been aware of the situation since her arrival in March 2006. In addition, Mr. Guérin testified that he had made his need for support known to Ms. Domingue within a few weeks of her arrival.

66 The position could not be staffed on an indeterminate basis in less than six months, and it was not explained why Ms. Bouchard was appointed for four months less a day. However, Ms. Bouchard’s appointment and the extension of that appointment show that there was a need to staff the position on an acting basis from May 2006 to March 2007. The need for support was therefore known since March 2006, and it was Ms. Domingue’s duty as a manager to staff Mr. Bourbonnais’ position on an acting basis in order to ensure the necessary support in the fall.

67 Ms. Domingue chose not to act on the interest shown by Mr. Robillard when he learned of Mr. Bourbonnais’ imminent departure. The Tribunal has before it two different versions with respect to Mr. Robillard’s experience in relation to the position of Regional Insurance Advisor. It must therefore determine which of the two versions is more credible. As the Tribunal stated in Glasgow, the test to be applied when credibility is at issue is well established in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.).

68 Ms. Domingue testified that she was looking for someone with experience. Yet, Mr. Robillard had a number of years of experience as an acting Regional Insurance Advisor, and the position had been offered to him on an indeterminate basis following a selection process. Ms. Bouchard had barely two years’ experience in the position of Consultant/Technical Expert, PM-03.

69 A practical and informed person would recognize from the outset that, on a balance of probabilities, it is not reasonable for Ms. Domingue to have disregarded Mr. Robillard’s candidacy on the grounds that his experience was insufficient. Similarly, it was unreasonable for Ms. Domingue to select Ms. Bouchard because she was looking for someone with experience.

70 Mr. Robillard not only has a great deal of experience, but he had worked for a number of years in the position of Regional Insurance Advisor. Ms. Bouchard does not have experience in the position and, on the evidence, other employees had more insurance experience than she did. The Tribunal concludes that Ms. Domingue’s testimony is not credible on this point.

71 The fact that Ms. Domingue appointed Ms. Bouchard for a period of less than four months, knowing that the need would exist for at least six to nine months, and that she claimed urgency to justify a non-advertised process and extend the appointment, leads the Tribunal to find that the respondent acted in bad faith. Moreover, the fact that Mr. Robillard was not considered because a person with experience was sought whereas a person with very little experience was appointed reinforces the conclusion that there was bad faith. The respondent took actions that were clearly at odds with the PSEA, and the Tribunal cannot reasonably conclude that it did so in good faith. The Tribunal finds that the circumstances surrounding Ms. Bouchard’s appointment are inexplicable, and even incomprehensible, to the point where it can only conclude that the respondent acted in bad faith.

72 The Tribunal therefore finds that the respondent demonstrated bad faith and, thus, abused its authority in extending Ms. Bouchard’s appointment by means of a non-advertised appointment process.

Issue 2: Did the respondent abuse its authority by relying on insufficient material in assessing Ms. Bouchard with a view to extending her appointment?

73 The complaints were also made under paragraph 77(1)(a) of the PSEA, alleging abuse of authority by the respondent in the application of merit. Paragraph 77(1)(a) reads:

77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Tribunal’s regulations — make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of

(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2); [...]

74 Subsection 30(2) states:

30. (2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and

(b) the Commission has regard to

1. any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
2. any current or future operational requirements of the organization that may be identified by the deputy head, and
3. any current or future needs of the organization that may be identified by the deputy head.

75 As the Tribunal stated in Tibbs v. Deputy Minister of National Defence et al.,[2006] PSST 0008, abuse arises when the delegate acts on inadequate material in making a discretionary decision, including where there is no evidence or without considering relevant matters.

76 In addtion, in order for an appointment to be based on merit, the person appointed must meet the essential qualifications. Requiring abuse of authority to be linked to improper intent, as the PSC advocates, would lead to situations that are clearly inconsistent with the purpose of the PSEA. The Tribunal stated the following in Rinn v. Deputy Minister of Transport, Infrastructure and Communities et al., [2007] PSST 0044, at paragraph 38:

[38] [...] Parliament expressed its unequivocal intention that merit would be independently safeguarded and this is provided through recourse to the Tribunal. Recourse under paragraph 77(1)(a) of the PSEA addresses this appointment issue, namely, whether an appointment or proposed appointment is made on the basis of merit. It is not a matter of an improper intention. If the appointee does not meet the essential qualifications then, regardless of intent, it is not an appointment based on merit.

77 The complainants allege that the frequency and brevity of Ms. Mercier’s supervision did not allow for an assessment of whether Ms. Bouchard’s qualifications met all the merit criteria. They also maintain that the respondent had insufficient information to assess essential qualifications and conclude that Ms. Bouchard met the essential qualifications for the position. Ms. Bouchard’s appointment would therefore not be based on merit.

78 Ms. Mercier, the complainant’s supervisor, supervised Ms. Bouchard from April 10, 2006 for only a few weeks, one or two days a week. In early June 2006, Ms. Domingue contacted Ms. Mercier in order to assess Ms. Bouchard’s qualifications for the position in question. Their telephone conversation lasted about 45 minutes, and Ms. Domingue discussed two subjects with Ms. Mercier. They discussed Ms. Bouchard’s knowledge, but mainly they discussed her ability to use technology. Ms. Domingue did not conduct any other verification or assessMs. Bouchard’s essential qualifications. The evidence shows that not all the merit criteria were assessed in June 2006 when the initial acting appointment of less than four months was made.

79 The respondent tendered into evidence a document entitled “Request for authorization for a term appointment” [Translation]. It indicates that the planned duration of the acting appointment is from June 20 to March 31, 2007. The document states that the manager is to attach a copy of the curriculum vitae, the statement of merit criteria, and the assessment report on the candidate. Neither the curriculum vitae nor the assessment report was attached to the rationale filed as evidence at the hearing. Ms. Domingue stated in her testimony that Ms. Bouchard met all the qualifications, with no additional details. In the last paragraph of the document, the respondent states:

Having assessed Ms. Bouchard, we find that she meets all the qualifications in the statement of merit criteria for the position of Regional Insurance Advisor. She in fact possesses all the essential qualifications to perform the duties at once, in order for management to meet its operational objectives. Attached is an assessment report, a copy of her CV, and the statement of merit criteria.

[Translation]

(Bold added)

80 As the Tribunal stated in Tibbs, in the absence of evidence to the contrary, the Tribunal may draw reasonable inferences from uncontested facts:

[54] While it is open to the respondent, for its part, to simply deny the assertion, once the complainant has presented some evidence in support of his or her assertion that abuse of authority has occurred, then the respondent will likely wish to raise a positive defense to the assertion. Moreover, it is open to the Tribunal to draw reasonable inferences from uncontested facts and, thus, if the respondent does not present evidence to explain its reasons for a particular course of action or conduct, it risks being faced with an adverse finding by the Tribunal, namely, a substantiated complaint: Gorsky, Uspich & Brandt, supra, at 9-15, 9-16.

81 The Tribunal is perplexed by the fact that the curriculum vitae and the assessment report on Ms. Bouchard were not submitted by the respondent. It does not believe that the mere statement by Ms. Domingue that Ms. Bouchard met all the qualifications is sufficient, given the evidence offered by the complainants. The respondent holds all the information on the appointment process, and is in a position to submit complete evidence to explain the process if it took place in a manner different from that stated by the complainants. It may be that the respondent elected not to place these documents in evidence because they do not exist, or because their disclosure would cast doubt on Ms. Bouchard’s essential qualifications. There may be other reasons, but in the absence of these documents, the Tribunal is rendering a decision based on the evidence tendered at the hearing.

82 The complainants’ evidence concerning one essential qualification, namely “Significant experience in enforcing the Act and Regulations” [Translation], indicates that Ms. Bouchard lacked such experience. Mr. Bourbonnais testified that the questions she asked demonstrated her lack of experience in enforcing the Employment Insurance Act, 1996, c.23 and its Regulations. Mr. Bourbonnais explained that the questions she asked him were basic questions generally asked by new employees. Mr. Guérin also explained that he had essentially organized, planned and prepared the required material for the tour, and Ms. Bouchard merely observed him.

83 Mr. Bourbonnais and Mr. Guérin were not responsible for assessing Ms. Bouchard, but by reason of their duties, they were in a position to form an enlightened opinion of her knowledge and abilities. In the absence of documentation or testimony refuting the testimony of these two witnesses, the Tribunal must give some weight to their testimony. It has no reason to believe that Mr. Bourbonnais and Mr. Guérin were less than frank in their testimony. Consequently, on a balance of probabilities, Ms. Bouchard did not have the significant experience sought in the enforcement of the Employment Insurance Act and its Regulations.

84 The Tribunal has already found Ms. Domingue’s testimony not credible as to the experience sought. Also, she did not provide any details about Ms. Bouchard’s assessment in her testimony. The Tribunal has already determined that Ms. Domingue’s assessment of Ms. Bouchard in June 2006 was incomplete. The respondent consequently could not rely on it to extend the appointment. A new assessment had to be completed. Since Ms. Bouchard assessment’s was not attached to the rationale, it is not clear whether a new assessment was made, or whether the respondent relied on the assessment of June 2006.

85 In this case, the respondent did not tender into evidence documents that could have set out the grounds for the decision, namely the assessment report and Ms. Bouchard’s curriculum vitae. As established in Rinn, for an appointment to be based on merit, the person appointed must have the essential qualifications. The weight of the evidence leads the Tribunal to conclude that the respondent did not adequately assess the merit criteria and, thus, did not meet the respondent’s obligations under the PSEA.

86 The Tribunal finds that the respondent did abuse its authority in relying on insufficient material to extend Ms. Bouchard’s appointment, and in making that appointment even though it was not based on merit.

Issue 3: Did the respondent show personal favouritism in assessing Ms. Bouchard?

87 The complainants allege that the respondent showed favouritism towards Ms. Bouchard. The Tribunal considered the concept of “personal favouritism” in Carlson-Needham and Borden v. Deputy Minister of National Defence et al., [2007] PSST 0038, and Glasgow.

88 In Carlson-Needham and Borden, the Tribunal quotes Black’s Law Dictionary, which defines “favouritism” as a “preference or selection, usually invidious, based on factors other than merit.”

89 The Tribunal noted in Glasgow that Parliament emphasized the concept of “personal favouritism”, rather than other types of favouritism. The Tribunal held that there is personal favouritism in an appointment process when undue personal interests constitute the grounds for the appointment. The Tribunal stated that the selection of a person as a personal favour, or to gain personal favour with someone else, constitutes personal favouritism. The Tribunal added that, in the absence of direct evidence, personal favouritism could be established by circumstantial evidence.

90 The Tribunal discussed evidence of personal favouritism in Glasgow, at paragraph 44:

[44] Evidence of personal favouritism can be direct, such as facts establishing clearly the close personal relationship between the person selecting and the appointee. However, it will often be a question of circumstantial evidence where some action, comments or events prior to, and during, the appointment process will have to be reviewed. Depending on its source and its particular relation to the issues in a complaint, circumstantial evidence can be as convincing as direct evidence. As Morley R. Gorsky, S.J. Uspich & Gregory J. Brandt, Evidence and Procedure in Canadian Labour Arbitration (Toronto: Thomson Carswell, 1994) state, at page 13-5:

Circumstantial evidence can lead to as thorough a sense of surety as does direct evidence. Indeed, circumstantial evidence can sometimes be more convincing than direct evidence. The convincing power of circumstantial evidence usually lies in the weight of many circumstances added together.

91 In this case, the complainants assert that Ms. Domingue showed personal favouritism towards Ms. Bouchard in appointing her. In support of that assertion, they submitted in evidence actions, comments or events observed before or during the appointment process.

92 Ms. Cameron testified that Ms. Bouchard sat at the same table as the senior regional managers during the meeting in Magog. Ms. Domingue confirmed this. She explained that it was during that meeting, that she met Ms. Bouchard for the first time. Ms. Robert introduced her, saying: “I have been singing her praises for a long time, I have told you about her; I am now introducing her to you.” [Translation].

93 Such a remark may be interpreted in many ways. Ms. Robert may have recognized the quality of Ms. Bouchard’s work and wanted to share the information with her colleagues. On the other hand, it could be considered as personal favouritism if Ms. Domingue personally favoured Ms. Bouchard in the belief that she could obtain personal favours from Ms. Robert. In the absence of direct evidence, the Tribunal considered all the evidence in order to determine whether the complainants had demonstrated whether there was personal favouritism.

94 The complainants maintain that there is evidence of personal favouritism because Ms. Domingue did not consider other qualified persons who had expressed interest. On two occasions, Mr. Robillard informed Ms. Domingue that he was interested in the position. The complainants also maintain that Ms. Domingue preferred to appoint a person who did not have the significant experience sought because she had been recommended to her by a senior regional manager. Futhermore, Ms. Bouchard was able to telework, whereas telework had been denied to Mr. Robillard when he had won an earlier competition.

95 It is clear that Ms. Domingue acted in bad faith when she did not consider Mr. Robillard because she was looking for someone with experience. However, having reviewed all the circumstances, the Tribunal finds that the complainants have not established that Ms. Domingue demonstrated personal favouritism, as explained in Glasgow, in choosing Ms. Bouchard for the position.

96 The facts establish that, while Ms. Domingue had heard her referred to in favourable terms, she had not known Ms. Bouchard very long when she appointed her. However, managers often act on recommendations received from other managers. This in and of itself does not constitute evidence of personal favouritism.

97 Also, the fact that Ms. Domingue allowed Ms. Bouchard to telework does not show a tendency towards personal favouritism. Mr. Robillard, like Ms. Bouchard, had been able to telework in the past throughout his acting appointment as Regional Insurance Advisor. Furthermore, when Mr. Robillard was offered the position on an indeterminate basis, it was not Ms. Domingue who decided that telework was not an option, since she had not yet taken up her duties.

98 For all these reasons, the Tribunal finds that the complainants have not established that the respondent appointed Ms. Bouchard to the position on the basis of personal favouritism.

Decision

99 For all these reasons, the complaints are allowed.

Corrective action

100 The relevant provisions concerning corrective action are found in subsection 81(1) and section 82 of the PSEA, which read as follows:

81. (1) If the Tribunal finds a complaint under section 77 to be substantiated, the Tribunal may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate.

82. The Tribunal may not order the Commission to make an appointment or to conduct a new appointment process.

101 Ms. Cameron wishes to receive training and a work placement at the same level as the disputed position. The respondent maintains that the Tribunal does not have jurisdiction to order a work placement.

102 Mr. Maheux seeks a statement from the Tribunal indicating that the respondent abused its authority.

103 Under section 81 of the PSEA, the Tribunal may order revocation of an appointment, and any corrective action it considers appropriate. Since Ms. Bouchard’s acting appointment ended with the completion of the indeterminate appointment process, the Tribunal cannot order its revocation.

104 The respondent maintains that, on the basis of the wording of subsection 81(1), the Tribunal can order only revocation and corrective action. According to the respondent, since revocation is not possible, the Tribunal cannot order corrective action.

105 As the Tribunal established in Wylie v. President of the Canada Border Services Agency et al., [2006] PSST 0007, the fact that the acting appointment has ended does not render the Tribunal’s consideration of the complaint moot. Furthermore, if a complaint is substantiated, the Tribunal has the power, in addition to ordering a respondent to revoke or not make an appointment, to take any corrective action that the Tribunal considers appropriate.

106 It is clear that in using the word “and” in subsection 81(1), Parliament gave the Tribunal the power to order either revocation or corrective action, or both, as it sees fit. See Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4^th Edition (Markham: Butterworths, 2002), at paragraphs 66 to 69.

107 The Tribunal therefore finds that when it considers a complaint substantiated, it may order corrective action even if it does not order the revocation of the appointment. See also Bowman et al. v. Deputy Minister of Citizenship and Immigration et al., [2008] PSST 0012.

Order

108 Thus, while revocation is not an appropriate corrective action in this case, the Tribunal has considered the arguments submitted by the parties, and orders the following corrective action.

109 In less serious circumstances, the Tribunal’s finding that a manager abused the discretionary authority delegated to him or her may constitute a sanction in itself. However, the Tribunal has determined in these complaints that the testimony of Ms. Domingue was not credible on the question of the experience sought. The allegations of bad faith were also found by the Tribunal to have been proven, and the appointment was not based on merit.

110 For all these reasons, the Tribunal orders the respondent to review all appointments made by Ms. Domingue since the coming into force of the PSEA, in order to ensure that they were in fact based on merit. The Tribunal further orders the respondent to suspend the staffing authority delegated to Ms. Domingue as a manager during the aforesaid review, and during that period, to provide her with training to ensure that she correctly understands her responsibilities and obligations under the new PSEA.

Francine Cabana

Member

Parties of Record

Tribunal Files:

2006-0235 & 0236

Style of Cause:

Diane Cameron and André Maheux and the Deputy Head of Service Canada, as part of the Department of Human Resources and Social Development et al.

Hearing:

October 25 and 26, 2007
Quebec City

Date of Reasons:

June 20, 2008

Appearances:

For the complainant:

Michel Mathieu and Pierre Rinfret

For the respondent:

Martin Desmeules

For the Public
Service Commission:

Angie Paquin