FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainants, Timothy Bowman, John Bruce Grundison and Philip Lupul, are alleging that they were not appointed to the FS-04 group and level at Citizenship and Immigration Canada (CIC) by reason of abuse of authority in the establishment and application of one of the essential qualifications included in the merit criteria for the pool of FS-04 positions.

Background

2 Foreign Service (FS) employees and positions in CIC are managed as a pool of resources. Two pools of positions are created at each FS level; one pool of pay positions to which employees are appointed and one pool of duty positions to which employees are assigned, not appointed, on a rotational basis.

3 In July of 2005, CIC executed a classification conversion of the FS group, converting from two levels to four levels. Under the former structure, the FS-01 level was sub-divided by including the FS-01D Trainees. Under the post-conversion structure the four levels are FS-01 (Trainees), FS-02, FS-03 and FS-04. Employees at the FS-02 level at the time of conversion were converted to the FS-03 level. No employees were converted to the FS-04 level.

4 It is a condition of employment that FS employees are rotational. They are required to serve, on assignment, at any location in Canada or throughout the world as determined by CIC. Failure to undertake an assignment can result in removal from the rotational pool and termination of employment as a Foreign Service Officer (FSO). CIC has an established system in place for managing rotational assignments.

5 Although work began in 2005 on what was initially the Statement of Qualifications, under the former staffing system, it was decided to conduct this appointment process under the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (the PSEA), which would come into force on December 31, 2005.

6 On February 7, 2006, an internal appointment process was advertised to fill the pool of FS-04 positions. As the result of a notice issued to clarify one of the essential qualifications, the closing date for submitting applications was extended until March 16, 2006.

7 The three complainants were all advised that they had been eliminated from the appointment process because they did not meet one of the merit criteria used for screening candidates, namely, significant HQ (headquarters) experience in CIC, CBSA (Canada Border Services Agency) or OGD (other government department) in an area related to the immigration or citizenship programs or in corporate services (for example: finance, human resources, material management).

8 On January 25, 2007, Mr. Bowman, Mr. Grundison and Mr. Lupul each filed a complaint with the Public Service Staffing Tribunal (the Tribunal) under paragraph 77(1)(a) of the PSEA.

9 All three complainants allege abuse of authority by the respondent, the Deputy Minister of Citizenship and Immigration, in two respects: first, by establishing significant HQ experience in CIC, CBSA or OGD in an area related to the immigration or citizenship programs or in corporate services (for example: finance, human resources, material management) as an essential qualification; and, secondly, in assessing their qualifications against that essential qualification.

10 The Tribunal consolidated these files for the purpose of hearing, in accordance with section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 (the PSST Regulations).

Summary of relevant evidence - establishment of essential qualification

A) Requirement for Significant HQ Experience

11 Ms. Diener, Regional Manager of Human Resources, International Region testified on behalf of the respondent. She has worked in the human resources field since 1985 and has held her current position for nine years. Ms. Diener testified that she worked with the Director of Personnel and the Assistant Deputy Minister (the ADM) over a period of several months to develop the Statement of Merit Criteria (the SMC) for the FS-04 appointment process. She explained that the ADM is delegated to establish qualifications and that both of these Executive level (EX) officials have rotational backgrounds and are familiar with the jobs and the work. She testified that the merit criteria were established based on the work to be performed in the pool of all FS-04 duty positions and the CIC core competencies.

12 Ms. Diener explained that the ADM was adamant that significant HQ experience is an essential qualification, directly related to the FS-04 duties. She testified that, in order to perform the FS-04 level work in the way it is envisioned, a full understanding is required of how HQ works, including immigration and refugee processing centres, citizenship programs, and links to other government departments and to central agencies. It is necessary to understand the machinery of government in Ottawa and CIC’s stakeholders.

13 Under cross-examination, Ms. Diener explained that the requirement for HQ experience was discussed in great detail. She testified that the ADM was not willing to accept equivalencies and that the flexibility accorded to this qualification was to accept OGD experience and corporate experience.

14 The SMC was submitted into evidence, including the attached notes which defined “significant” as it related to the experience requirements. Ms. Diener explained that a clarification/amendment was issued after the original advertisement and SMC, because there had been some confusion over the definition of significant. The original definition was “two posting cycles (summer to summer) in same position or two assignments in two different positions of one posting cycle each.” The amended definition is “one assignment of approximately 24 months in the same position or two assignments in two different positions of approximately 12 months duration each.”

15 The following explanation was included in the clarification/amendment:

Each 12 month period is an assignment “cycle” and the nature of our rotationality means that assignment cycles may end ahead of the anniversary date of the 12 months (or multiples of 12 months as the case may be) or after. In the poster the mention of “summer to summer” was used to underscore that assignments (sic) cycles are never 12 months exactly. The terms used were meant to illustrate this point both for the selection board and the officers. This was not meant to exclude assignments Fall to Fall or Spring to Spring etc. It was not clear enough.

16 Ms. Diener testified that the amendment clarified that the importance was placed on the period of time in the assignment(s), not which months. She explained that the period of time is important because FSOs normally begin HQ assignments mid-fiscal year, based on the rotation cycle. The requirement of “significant” meant that those who met it would have been in an HQ assignment for a full fiscal and planning cycle.

17 Ms. Diener explained the relationship of HQ experience to the CIC Core Competencies and FS-04 Indicators. This latter document was introduced at the hearing. She gave examples of some indicators of the competency Adaptability and Flexibility that are enhanced by HQ experience and others that are demonstrated differently in HQ work than in work abroad. She stated that five of the six indicators of Action Management are relevant to HQ work and that all ten indicators of Teamwork, Collaboration and Leadership are enhanced by HQ experience. She stated that the stakeholders and agendas in HQ are different than overseas. As well, addressing human resources management issues with public service employees in HQ is different than with locally-engaged staff overseas.

18 When asked, under cross-examination, whether significant HQ experience is a new requirement for FS promotions, Ms. Diener explained that promotions were previously based on performance reviews and that this is the first FS appointment process conducted in CIC since the FS conversion. She stated that Assignment Officers have likely been advising FSOs that HQ assignments are important for their careers, but she acknowledged that the first time FSOs had been told of the requirement may very well have been when they saw the advertisement for this process.

19 When asked if there had been any appreciation that some long-service employees would be eliminated from the process based on the requirement for significant HQ experience, Ms. Diener stated that it was thought that many FS-03s would be included. She acknowledged that there would be some disappointed employees but the process was based on merit and not on seniority. Ms. Diener also stated that the qualifications were not established with the goal of reducing the number of candidates.

20 Ms. Diener testified that it was anticipated that upward of 120 applicants would apply. This estimate was based on the number of FS-03s, recognizing that some individuals had graduated to the former FS-02 level just prior to the conversion and would not be experienced. As well, some FSOs are known to want to be permanently abroad, while others need to be encouraged to accept assignments abroad. Approximately 95 candidates applied. After some withdrew, there were about 85 to 90 candidates in the appointment process.

21 She testified that all candidates were FSOs and that 84 percent of those who participated met the requirement for significant HQ experience.

22 Ms. Anne Arnott also testified for the respondent. She was not involved in establishing the merit criteria for this process. Since she became Director General of International Region in the fall of 2006, the FS-04s have reported to her and she is familiar with the duties and requirements of the jobs. Prior to her current position, Ms. Arnott was an FSO for 26 years, had four overseas assignments, including four years as the Immigration Program Manager (the IPM) in New York, and was Director General of Case Management.

23 Ms. Arnott testified that HQ experience is very relevant and is required to meet the core competencies at the FS-04 level. According to Ms. Arnott, several of the core competency-related indicators could not, in her opinion, be demonstrated by candidates without HQ experience. She stated that experience abroad would provide narrow exposure to some stakeholders depending on the assignment. FS-04 work requires a broad knowledge of a variety of stakeholders and OGD interests when dealing with any issue. She testified that candidates without HQ experience do not have the context to allow them to conceptualize the different scenarios and possible outcomes expected of an FS-04 dealing with large multi-dimensional problems.

24 Ms. Arnott and Ms. Diener both testified that this process was not intended to fill one job, but was conducted to create a pool of qualified people who would be expected to perform the duties of any of the FS-04 duty positions in various locations overseas and in HQ.

B) Rotational Assignments

25 All three complainants testified about the rotational program and their individual experiences of it. Mr. Bowman stated that it is clear from CIC literature that FSOs must be fully rotational. He described the program as “paramilitary” in nature, in that CIC determines where and in what job FSOs serve. Mr. Lupul described the assignment selection and extension process as a negotiation, but not between equals.

26 Mr. Lupul explained that assignments normally begin and end in the summer months. The assignment process begins in the fall, when CIC circulates a list of overseas positions. The list indicates whether a position is encumbered and the projected end of the current incumbent’s assignment. The list is accompanied by posting preference forms (PPF) and a list of postings that indicate the level of hardship. In the first section of the PPF, FSOs are asked to state their overseas posting preferences and limitations; their HQ assignment preferences are to be indicated in the second section of the PPF. Mr. Lupul testified that he has never seen a list of HQ postings similar to the one circulated for overseas postings. He described the HQ assignment options as vague and stated that they are typically the last assignments to be settled, often at the end of the summer.

27 Mr. Bowman testified that, based on information provided by CIC, he believes that CIC expects FSOs to spend 60 percent of their careers overseas. He referred to a listing of duty positions, abroad and in Canada, and testified that the majority of FS positions are overseas. Mr. Bowman explained that most postings are for two to four years, depending on the hardship ranking of the posting. Unusual circumstances such as war and other safety or health considerations may also have a bearing on the length of a posting. He explained that the PPFs are reviewed at headquarters, and the final step in the assignment process is the posting confirmation form, which authorizes the assignment and the expenditure for the move.

28 Ms. Diener testified that rotational assignments are managed jointly by the Director of Personnel and the Director General of International Region. She explained that HQ assignments for FSOs are not all in FS positions, which are all situated in the International Region, and are few in number in HQ. FSOs returning to Canada are also assigned to non-FS positions in other branches of CIC. Ms. Diener testified that, to her knowledge, there has never been a situation where CIC could not accommodate a request from a FSO for a HQ assignment. She stated that the demand for FSOs to work in HQ exceeds the number of FSOs requesting assignments to HQ. She also testified that the non-FS assignments provide FSOs with HQ experience.

29 Under cross-examination, Ms. Diener explained that the PPF is the starting point for discussions between the FSO and the Assignment Officer in Personnel. It is not always possible to accommodate the FSO’s preferences, and they may be asked to consider other assignments. Ms. Diener testified that, despite the obligation of FS employees in CIC to accept postings as part of their terms and conditions of employment, FSOs are never forced to go somewhere they don’t want to go or stay somewhere they don’t want to stay. She stated that sometimes CIC will ask a FSO to fill a need; however, if the answer is no, CIC does not force the assignment.

30 Ms. Diener explained, under cross-examination, that, despite the difficulty in meeting the demand for FSOs at HQ, postings abroad are filled first because more lead time is required to obtain medical clearance, sell homes, make arrangements for getting children into schools, etc. She also testified that a list of HQ assignments is not circulated at the beginning of the assignment cycle in the fall. The reason is that although the vacancies in International Region are generally known at that time, vacancies in the rest of the HQ branches are not. Ms. Diener acknowledged that she is not sure that lists of HQ assignments are ever circulated. She agreed that details of a HQ assignment are often unknown until the FSO has returned to Canada.

31 Mr. Bowman testified that his first overseas assignment was to Manila, which was listed as a choice on his PPF, but not his first choice. He stated that language training was not available to him at the time, and he was advised that he needed an overseas assignment. Under cross-examination, Mr. Bowman agreed that he requested, and was granted, an extension to his assignment in Manila. He explained that, when approached to consider an assignment to Bucharest, he was advised to make his request for extension in writing during discussions with Personnel.

32 Mr. Bowman testified that he believed plans were in place for an assignment to Nairobi when he was told that he was not suitable for the assignment and was asked to consider Moscow. He stated that no other options were offered to him, including HQ, and he felt that he didn’t have room to negotiate. Under cross-examination, Mr. Bowman agreed that he had listed Moscow on his PPF. Referring to the PPF in question, he agreed that while Nairobi was listed first and Moscow second, he had written that he had no single preference among the five locations listed on his PPF.

33 Mr. Bowman testified that he was considering returning to Canada, but was told that there were not many assignments at HQ and that FSOs were needed overseas. He stated that he inquired about language training and several other assignments before being told he could go to Taipei or D etroit. He did not recall either being on his PPF. He was assigned to Taipei.

34 Mr. Bowman testified that he expressed his interest in returning to Canada, but would consider remaining overseas for an assignment as an Immigration Program Manager (IPM). He stated that he was asked to consider an assignment to the IPM in Tehran, and was told that there were no other options available to him. He added that he could possibly have returned to Ottawa to an unspecified role, but that was not discussed. Mr. Bowman testified that he agreed to an extension of his assignment in Tehran because he was committed to providing management continuity during major projects that were underway. He also testified that he would not have accepted the extension in Tehran if he had known the importance of a HQ assignment.

35 Mr. Grundison testified via teleconference since he was on assignment overseas. He testified that for his first overseas assignment he was asked to consider Kingston, although it was not listed on the PPF he had completed. He stated that he was surprised because he had thought that the PPF would be used to determine assignments. His Project Manager advised him that he should take the assignment.

36 Mr. Grundison’s second overseas assignment was to Beijing. He testified that no other options were offered at the time, and, specifically, no HQ assignments. He stated that he was told that International Region needed field officers. Under cross-examination, Mr. Grundison agreed that Beijing had been his first choice of assignment listed on his PPF, and that he subsequently agreed to an extension in that assignment.

37 Mr. Grundison testified that the PPF he completed while in Beijing listed Tokyo as his only overseas preference. He had also listed several HQ assignments of interest to him. He explained that he was advised that the Tokyo assignment had been filled and was asked to consider one of two positions in Hong Kong. He did not believe that either of the positions would broaden his management experience and he wanted a project management role or an assignment in HQ. He declined the Hong Kong assignment, and asked for other options abroad. He described this action as a counter-proposal since nothing at HQ had been offered. Mr. Grundison was subsequently asked to consider Ankara which, although listed on a previous PPF, was not on his current PPF. He stated that the Ankara assignment was a senior job in a full-service office, and he felt that it was a vote of confidence that he was offered that assignment.

38 Mr. Grundison testified that he wanted to return to Ottawa to learn how HQ works. He discussed this with an Assignment Officer in the winter of 2003. Under cross-examination he agreed that he requested, and was granted, an extension to his assignment in Ankara. When Mr. Grundison was asked if he had specifically requested, and been denied, an assignment to HQ at that time, he stated that he had not insisted on a HQ assignment. He agreed that his first clear demand for a HQ assignment was in his PPF for the 2004 assignment rotation cycle. He did return to Ottawa in 2004. He explained that, since HQ assignments are determined very late, he found his own assignment outside International Region within HQ at CIC.

39 Under re-direct examination, Mr. Grundison testified that it is his understanding that the PPF is used to request a HQ assignment. He confirmed that he had listed HQ assignments on his PPFs every year. He stated that he wanted to extend his assignment in Ankara; however, he did not want to stay away from Ottawa for more than two more years. Mr. Grundison testified that it was CIC’s decision to extend his assignment in Ankara.

40 Mr. Lupul testified that, following his leave without pay, he expressed interest in an assignment in New Delhi and was assigned there. He testified that his next assignment to Detroit was the only option presented to him at the time. He took the assignment. He stated that he did not recall the details of his discussions with Personnel but any HQ option that may have been discussed would have been vague. His choice would have been between a precise overseas assignment, and an undefined HQ assignment. Mr. Lupul testified that he was never offered a specific HQ assignment prior to his current one.

41 Under cross-examination, Mr. Lupul agreed that overseas assignments provide financial allowances to FSOs that are not available to those on assignment to HQ. He acknowledged that in 1998, he requested an extension to his assignment in New Delhi. In support, he made reference to the financial difficulty of an HQ assignment in his particular family circumstances. He explained that he knew that New Delhi is difficult to staff and that, since it would suit Personnel to keep him there, it would not be hard to obtain an extension. Mr. Lupul agreed that, on his 1999 PPF, his first choice was another one year extension in New Delhi, which was granted. He also agreed that that he stated on his PPF that if an extension in New Delhi was not possible; his preference would be for an assignment in the United States or London. Mr. Lupul acknowledged that he was never denied a specific request for a HQ assignment. He does not believe that his assignments were arranged deliberately to keep him from HQ.

42 Under re-direct examination, Mr. Lupul testified that, in the negotiation of assignments, while FSOs have preferences, they are also aware of their obligations with respect to rotation. He stated that he did have HQ preferences.

C) Work In HQ Versus Work Abroad

43 All three complainants testified about the role of an IPM in an overseas assignment. They described their responsibilities for hiring locally-engaged staff, assessing the performance of subordinate Canadian officers, planning and administering a budget, and planning and managing material resources. Mr. Bowman testified that he sought, and received, funding for additional staff and conducted the hiring. Mr. Lupul described the requirement to function as a member of the management team, and contribute to the overall mandate of the mission. He also described the requirement to exercise immigration responsibilities on behalf of the Minister of CIC, and to establish and maintain good working relationships with the host government’s officials. All of this has to be done while advocating and defending Canada’s position on immigration matters. Under cross-examination, Mr. Lupul agreed that work at HQ is different from work abroad.

44 Under cross-examination, Ms. Diener was questioned about the work of FSOs abroad as compared to their work at HQ. Ms. Diener testified that FSOs abroad deal primarily with locally-engaged staff who are not hired under the PSEA. She stated that the FSOs do not hire Canadian officers for the mission. Engagement of local staff is normally done by the Mission’s Administrative Officer. She explained that FSOs assigned at HQ are involved with staffing and labour relations activities related to public service employees who are appointed under the PSEA. Ms. Diener testified that the budgets that are allocated abroad are considered very small and, like human resources, are managed centrally in HQ. She testified that FSOs abroad have no need to know about CIC’s interaction with, for example, the Public Service Commission or the Canada Public Service Agency. Ms. Diener also stated that while abroad, FSOs deal with employees from other government departments, but not for the same reasons as they would when working at HQ. She provided examples of the differences between interactions with the Canadian Security Intelligence Service and the Royal Canadian Mounted Police in HQ and abroad.

Summary of relevant evidence – assessment of essential qualification

45 Ms. Caroline Guimond, Director of Resource Management, International Region was a member of the screening board along with the former Director General of International Region and the Senior Director of Geographics, International Region. Ms. Guimond testified that the screening board determined that 11 months would be the minimum acceptable to meet the “approximately 12 months” related to two assignments. The minimum acceptable to meet the “approximately 24 months” in one assignment would be 22 months. She explained that the screening board had to assess significant HQ experience, and determined it would apply some leeway because gaps may occur between assignments. Ms. Guimond testified that the board established the criteria at the beginning of the screening. It applied the criteria the same way to all applicants.

46 Ms. Guimond testified that time as a Trainee was not considered as meeting HQ experience. She explained that Trainees move from one assignment to another and assignments are interrupted by frequent training courses. Trainees are not expected to have charge of a full file. Ms. Guimond testified that it was her recollection that all applicants had spent time as a Trainee. She stated that no applicant’s Trainee experience was considered for screening purposes.

47 Ms. Guimond testified that multiple assignments of shorter duration could not be accumulated in order to reach the time requirement for experience established by the screening board. She testified that the screening board was looking for demonstrated experience carrying the full responsibilities of an assignment for a period of time, not for experience on several small projects. Ms. Guimond confirmed that this approach was applied to the screening of all applicants.

48 Ms. Guimond testified that the screening board determined that the closing date of March 16, 2006 would be used to calculate applicants’ experience. She testified that this criteria was applied to all applicants.

49 Ms. Diener testified that applicants were not advised that any equivalencies would be accepted. She stated that equivalencies were not accepted because the ADM was clear that HQ experience was required. Under cross-examination, Ms. Diener denied that the decision concerning equivalencies was made to avoid difficult work for the assessment board.

50 Mr. Bowman testified as to the rigorous assessment applied to candidates for entry to the FS group. This consisted of three written examinations administered in one day, an interview and a group simulation exercise. When he participated in 1990 approximately 60 people were hired from roughly 6,000 applicants. He characterized these results as typical. Mr. Bowman explained his promotion to the FS-02 level under the former individual merit process. Candidates needed to have had a specified number of years of experience at the FS-01 level, after which they were evaluated by a promotion committee, based on comprehensive annual performance appraisals. Mr. Bowman testified that he was converted to the FS-03 level in July, 2005. He is currently assigned to the position of Senior Analyst, International Region, at HQ.

51 Mr. Bowman testified that, while assigned to HQ as a Trainee, although not as experienced, he performed the same duties as other officers. Mr. Bowman described one of his duties at that time as helping to draft a newsletter on topics of interest to immigrants.

52 Mr. Grundison testified that the duties he was assigned as a Trainee were no different from other FS-01 officers.

53 Mr. Grundison testified that he was assigned to Ottawa in 1994 for four months. He was assigned to Ottawa again in August 2004 and remained there until June, 2007. Mr. Grundison was in the latter assignment when he applied to this appointment process. Under cross-examination, Mr. Grundison agreed that the closing date for applications was March 16, 2006. He also agreed that, on March 16, 2006, he had between 18 and 19 months experience in his then current Ottawa assignment.

54 Mr. Lupul testified that as an FS-01 Trainee he was assigned duties like other officers, with perhaps closer supervision because he was a new employee. He testified that he was sent on two overseas assignments while he was a Trainee.

55 Mr. Lupul testified that, in his application, he submitted information and documentation related to his studies to obtain his Master of Laws as equivalent to HQ experience. He testified that his thesis research resulted in an original study of, and contribution to, immigration law in the Canadian context. Mr. Lupul stated that there are similarities between his work as a graduate student and the work he is doing now at CIC. He also described CIC as a learning organization in which a recent list of priorities for study listed immigration law as the number one priority. Mr. Lupul testified that a team working on the new Immigration Act requested, and was given, a copy of his thesis. He believes that his thesis contributed to the new Immigration Act.

56 Under cross-examination, Mr. Lupul agreed that, while he was on leave without pay for his studies, he was not in HQ and was not responsible for any files.

57 Ms. Guimond testified that Mr. Lupul’s studies were not considered equivalent to HQ experience. She explained that Mr. Lupul’s studies would be related to policy work. According to Ms. Guimond, the study of a topic is undertaken in an environment that is different from the work environment. Ms. Guimond testified that no applicants’ time studying was accepted as HQ experience.

Issues

58 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in establishing, as an essential qualification, significant HQ experience in CIC, CBSA or OGD in an area related to the immigration or citizenship programs or in corporate services (for example: finance, human resources, material management)?
2. Did the respondent abuse its authority in assessing significant HQ experience:
   1. In respect of Mr. Bowman?
   2. In respect of Mr. Lupul?
   3. In respect of Mr. Grundison?

Arguments of the parties

A) Complainants’ arguments

59 The complainants argue that the Tribunal has jurisdiction in the matter of establishing qualifications. They argue that paragraph 77(1)(a) of the PSEA provides for complaints of abuse of authority by the deputy head in the exercise of his or her authority under subsection 30(2), which gives deputy heads direct, statutory power to establish qualifications. They distinguish this power from the Public Service Commission’s (the PSC) authority to assess qualifications and make appointments, which may be delegated to deputy heads.

60 The complainants argue that subsection 2(4) of the PSEA clearly includes, but does not limit, the meaning of abuse of authority to bad faith and personal favouritism. They submit that the Tribunal has already established in its decisions that a finding of improper intention is not required to determine that an abuse of authority occurred.

61 The complainants submit that the Tribunal should consider the matters in these complaints in the context of generally accepted labour law principles. They argue that the Tribunal’s standard for review of the respondent’s decisions should be reasonableness. The complainants referred the Tribunal to several labour arbitration decisions in presenting their arguments.

62 The complainants argue that the respondent failed to consider relevant matters when establishing significant HQ experience as an essential qualification for FS-04 positions. They submit that the respondent improperly ignored the recent conversion situation, and that the FS-04 positions had previously existed at the FS-02 level and had not materially changed. The complainants also submit that the respondent failed to consider that they had previously performed the duties of what are now FS-04 positions. The requirement for significant HQ experience unreasonably eliminated them at a preliminary stage of the process, thereby denying them the opportunity to be assessed. They argue that the requirement for HQ experience is unreasonable since it applies to only ten percent of the FS-04 positions. As well, the complainants argue that it is unreasonable to establish HQ experience as an essential qualification when CIC controls the rotational assignments of FSOs.

63 The complainants argue that the respondent fettered its discretion by assessing the requirement for significant HQ experience in a mechanical, rigid manner, without the necessary consideration of equivalencies.

64 The complainants argue that the respondent exercised its authority with improper intent. They submit that staffing authority is to be exercised to identify qualified people for positions in the public service. The complainants submit that this appointment process was delayed until the PSEA came into force in order to avoid the appeal process under the former PSEA, and that the requirement for significant HQ experience was established to reduce the number of candidates.

65 The complainants acknowledge and accept that they have the burden of proof in these matters.

B) Respondent’s arguments

66 The respondent did not submit arguments concerning the Tribunal’s jurisdiction in the establishment of qualifications by a deputy head. The respondent argues that the Tribunal has established in its decisions that an element of improper conduct must be present for a finding of abuse of authority. The respondent also argues that there is a fundamental difference between labour law and employment law in the federal public service, where staffing is not part of collective agreements. The respondent submits that the labour arbitration cases referenced by the complainants are irrelevant to the matters at issue.

67 The respondent argues that the complainants have not produced any evidence of abuse of authority. The respondent submits that knowledgeable senior managers developed the SMC over several months and that the evidence demonstrates a clear link between the SMC and the work to be performed at the FS-04 level. The respondent submits that it is always foreseeable that an essential qualification will be met by some candidates and not others.

68 The respondent argues that the complainants’ testimony demonstrates that they knew they were expected to spend 33 to 40 percent of their careers in headquarters. None of the complainants testified that they had been refused an HQ assignment. The respondent submits that the complainants never declined overseas assignments, and that they negotiated to obtain the assignments they wanted.

69 The respondent argues that the screening was not mechanical. It was conducted in a consistent, fair manner and all candidates were treated equally. The respondent submits that the screening board received a mandate from senior management, made allowances for the realities of the timing of rotational assignments, and assessed candidates using established criteria.

70 The respondent argues that the decision to conduct this appointment process under the PSEA was efficient and financially responsible in light of the transition taking place. The respondent argues that the complainants’ submission that its intent was to reduce the number of candidates is unsupported by the facts.

C) Public Service Commission’s arguments

71 The PSC did not submit evidence or present arguments on the facts of these complaints.

72 The PSC argues that, for an action in an appointment process to constitute an abuse of authority, it must include a deliberate disregard of an official duty along with knowledge that the misconduct is likely to injure the complainant. There must be an element of improper intention such as bad faith or personal favouritism. In situations of serious recklessness or carelessness, it may also be possible to impute bad faith and, therefore, make a finding of abuse of authority.

73 The PSC argues that the PSEA creates an accountability framework for internal staffing that leaves no void that needs to be filled by an expansive definition of abuse of authority. The PSC submits that the five categories of abuse of discretion identified by Jones and de Villars, Principles of Administrative Law (Toronto: Thomson Carswell, 2004), are inappropriate in the context of the PSEA. The PSC argues that the cases in which the five categories have been adopted arise from circumstances in which there was no statutory framework of checks and balances in place. There is such a framework in the PSEA. The PSC referred the Tribunal to two cases that, it submits, illustrate how abuse of authority should be interpreted under the PSEA.

74 The PSC submits that the PSEA excludes most errors and omissions and less egregious forms of improper conduct as grounds for abuse of authority under subsection 77(1). The authority to address such matters is given to the deputy head or the PSC, as the case may be, under subsection 15(3) and section 67 of the PSEA. The PSC argues that abuse of authority is not intended to capture unintentional acts. There could be an exception where serious recklessness or carelessness has resulted in errors or omissions. The PSC submits that abuse of authority is clearly a form of improper conduct.

75 Finally, the PSC submits that if the Tribunal adopts the Jones and de Villars categories, it should require some element of intention, serious recklessness or serious carelessness, thereby developing the categories of abuse of authority in accordance with the vision and scope of the PSEA.

Analysis

Issue I: Did the respondent abuse its authority in establishing, as an essential qualification, significant HQ experience in CIC, CBSA or OGD in an area related to the immigration or citizenship programs or in corporate services (for example: finance, human resources or material management)?

76 Pursuant to subsection 88(2) of the PSEA, the Tribunal is mandated to consider and dispose of complaints made under section 77. Paragraph 77(1)(a) of the PSEA provides for complaints to the Tribunal on the ground of: “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);”.

77 Subsection 30(2) of the PSEA reads, in part:

(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 (…)

78 Subsection 30(2) authorizes the PSC to determine whether a person is qualified; in other words, to assess people. While this authority may be delegated to deputy heads under section 15, statutory authority is given to the PSC. Similarly, the words “as established by” give deputy heads statutory authority to establish essential qualifications.

79 In Canada Trustco Mortgage Co. v. Canada, [2005] S.C.J. No. 56, 2005 S.C.C. 54, at paragraph 10, the Supreme Court of Canada set out the proper approach for statutory interpretation as follows: “ (…) When the words of a provision are precise and unequivocal, the ordinary meaning of words plays a dominant role in the interpretive process.”

80 In reading the above-noted provisions together in context and, in applying the ordinary meaning rule, a complaint may be made to the Tribunal on the ground that a deputy head abused his or her authority in establishing the essential qualifications for the work to be performed. Accordingly, the Tribunal has jurisdiction to consider and dispose of a complaint of this nature.

81 Abuse of authority is not defined in the PSEA. However, in Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, the Tribunal identified a framework to guide the analysis of abuse of authority complaints. The five categories are:

1. When a delegate exercises his/her/its discretion with an improper intention in mind (including acting for an unauthorized purpose, in bad faith, or on irrelevant considerations).
2. When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters).
3. When there is an improper result (including unreasonable, discriminatory, or retroactive administrative actions).
4. When the delegate exercises discretion on an erroneous view of the law.
5. When a delegate refuses to exercise his/her/its discretion by adopting a policy which fetters the ability to consider individual cases with an open mind.

82 The complainants submit that the respondent abused its authority by establishing significant HQ experience as an essential qualification without considering several relevant matters. Accordingly, they argue that the second category of abuse of authority in the Tribunal’s framework applies in the circumstances of their complaints.

83 According to the complainants, the following relevant matters were not considered by the respondent. First, the respondent failed to consider that, as FS-02s, they were qualified to perform any of the previous FS-02 positions, including those converted to the FS-04 level. Secondly, their respective work in previous assignments to what are now FS-04 positions, demonstrates their qualifications for FS-04 positions. Thirdly, the respondent failed to consider that the requirement for significant HQ experience would eliminate them at a preliminary stage of the appointment process, although they were otherwise qualified. Finally, the respondent abused its authority by not accepting equivalencies to the stated essential qualification. They make this submission in relation to the assessment of candidates; however, it is a matter which is related to establishing qualifications.

84 Ms. Arnott testified that the previous FS-02 level was too broad to conclude that every former FS-02 FSO would be qualified for all previous FS-02 positions. Ms. Arnott also testified that a prior assignment, or acting in a specific FS-04 job, does not demonstrate qualification for the variety of positions in the FS-04 pool; this was the purpose of this appointment process.

85 The evidence before the Tribunal establishes that the conversion of the FS positions in CIC created a new structure and hierarchy in which only some of the previous FS-02 positions became FS-04 positions, thereby distinguishing them from the other former FS-02s. The evidence also establishes that Mr. Lupul and Mr. Grundison were, at one time, assigned to FS-02 positions which became FS-04 positions on conversion. Mr. Lupul was in the assignment at the time of conversion and was given acting pay at the FS-04 level for the remainder of his assignment.

86 The complainants are essentially arguing that their prior assignments, or acting situations, are relevant matters, requiring consideration when determining the essential qualifications for the FS-04 positions.

87 The Tribunal does not accept that the prior consideration of the employment history of one or more specific candidates is relevant or appropriate when establishing qualifications in the context of an advertised appointment process. To have done so may well have left the respondent in a position of having to respond to complaints of bias or favouritism.

88 In their testimony and in their examination of the respondent’s witnesses, the complainants attempted to establish that HQ experience is unnecessary because the differences are minor, if any, between the work in assignments abroad and the work in HQ assignments. The respondent’s witnesses testified about the different responsibilities and relationships, and the differences in the context and scope of work performed in HQ and work performed in overseas assignments. Moreover, Mr. Grundison testified that he decided to return to HQ to learn how Ottawa works, and Mr. Lupul testified that the work he is currently doing at HQ is different from his previous overseas work.

89 The Tribunal is satisfied, based on the evidence, that HQ experience is different from overseas experience and is a separate, distinct qualification in the context of this appointment process. There is no evidence before the Tribunal that the respondent made an arbitrary decision to require significant HQ experience. On the contrary, the respondent’s evidence that the qualification is linked to the FS-04 work is compelling.

90 The complainants’ argument appears to be that this qualification is essential for only the HQ positions. The fact that only five of 45 FS-04 positions are in HQ is not disputed. However, the respondent’s witnesses testified that the appointment process was for the pool of all the FS-04 positions, and that a full understanding of how HQ works is necessary to perform FS-04 work. The Tribunal is satisfied that HQ experience was established as an essential qualification for all of the FS-04 positions, both overseas and in HQ.

91 A significant portion of the complainants’ testimony was related to CIC’s control over the FS rotational system.

92 On the evidence, the Tribunal finds the following pertinent facts. First, HQ FS positions are few in number. Secondly, HQ experience can be obtained in non-FS assignments. Thirdly, it can be difficult to meet the demands for FSOs for HQ assignments. Fourthly, lists of HQ assignments are not circulated at the beginning of the rotational system cycle. Finally, few details about HQ assignments are available in advance to FSOs.

93 None of the complainants testified that they had been refused a request for an HQ assignment. Mr. Lupul testified that he does not believe that he was deliberately kept from HQ. A CIC document submitted into evidence by the complainants, and the complainants’ testimony, clearly demonstrates that they were aware of CIC’s expectation that they spend time in HQ assignments. On the evidence, the Tribunal finds that it is generally understood by FSOs that one third to 40 percent of an FSO’s career is expected to be spent working in HQ. The Tribunal also finds that CIC did not expressly inform FSOs in advance of this appointment process that HQ experience would be an essential qualification.

94 It is clear, based on the evidence, that CIC holds the balance of power in the final determination of assignments for FSOs. It is also clear that FSOs are not completely without power in this system. All three complainants testified about situations where they obtained their assignment of choice, as well as situations where they acted strategically to obtain a preferred assignment or avoid an unwanted one. Mr. Grundison testified that he declined an assignment, and requested other options, which led to an acceptable assignment. There is no evidence before the Tribunal that the complainants were denied opportunities to acquire HQ experience.

95 Ms. Diener testified that an estimate of the number of applicants was made partly based on the knowledge that some FSOs were newly graduated Trainees, some FSOs prefer to be permanently abroad, and others prefer to be permanently at HQ. The Tribunal is satisfied that this general consideration of the pool of potential candidates is relevant when establishing essential qualifications in the context of an advertised appointment process. Ms. Diener also testified that 84 percent of applicants met the requirement for HQ experience.

96 On the evidence, the Tribunal is satisfied that the delegated manager, and the others involved in establishing the SMC, were fully knowledgeable and aware of the rotational system. The FS community in CIC operates on the rotational system, and the evidence demonstrates that knowledge of the system and its effects were used during the planning of the appointment process.

97 The complainants argue that the requirement for significant HQ experience is new and was unexpected. In fact the entire FS landscape in CIC is new. The fact that candidates did not know in advance should not prevent the respondent from establishing a qualification that is essential for the work.

98 The evidence before the Tribunal is that equivalencies to significant HQ experience were not considered. Ms. Diener testified that the inclusion of OGD and corporate experience reflects the maximum flexibility that was acceptable for meeting this essential qualification. Ms. Diener also testified that candidates were not informed that equivalencies to significant HQ experience would be accepted, nor were any accepted.

99 Paragraph 30(2)(a) of the PSEA authorizes deputy heads to establish essential qualifications “for the work to be performed.” Subsection 31(2) states that the essential qualifications “must meet or exceed any applicable qualification standards established by the employer (…).” There are no provisions in either the PSEA or in the Public Service Employment Regulations, SOR/2005-334, which require that deputy heads establish or accept equivalencies to essential qualifications. No evidence of any other binding policy or directive was presented.

100 The complainants also argue that the respondent’s definition of “significant” lacks purpose and is not explained in any reasonable way. From the perspective of the Tibbs analytical framework, this argument is most appropriately addressed with reference to category 1 – i.e. “the delegate exercising his discretion on irrelevant considerations.”

101 Based on the evidence before the Tribunal, the respondent was seeking candidates who had a full understanding of how headquarters works and the machinery of government. The respondent’s delegated official, the ADM, determined that this could be demonstrated by candidates who had been in charge of a file throughout a full planning and fiscal cycle. Given the rotational nature of the FS work, this would be achieved through approximately 24 months in one assignment, or approximately 12 months in each of two assignments.

102 Based on the evidence, the Tribunal is satisfied that the ADM exercised his discretion on relevant considerations when he established significant HQ experience as an essential qualification.

103 The complainants must prove, on a balance of probabilities, that the respondent abused its authority in establishing, as an essential qualification, significant HQ (headquarters) experience in CIC, CBSA or OGD in an area related to the immigration or citizenship programs or in corporate services (for example: finance, human resources, material management).

104 The Tribunal has explained this obligation in Portree v. Deputy Minister of Human Resources and Social Development et al., [2006] PSST 0014:

[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. (…)

105 Although the complainants presented arguments on several fronts with respect to this issue, when considered both individually and as a whole, there is no clear, convincing evidence of abuse of authority in the establishment of this essential qualification.

106 The respondent could, perhaps, have provided a more informative definition of “significant” to candidates; however, this does not amount to an abuse of authority.

107 There is also no evidence that the respondent’s decision to conduct this appointment process under the PSEA rather than under the former staffing scheme was improper in any way.

Issue II: Did the respondent abuse its authority in assessing significant HQ experience:

1. In respect of Mr. Bowman?
2. In respect of Mr. Lupul?
3. In respect of Mr. Grundison?

108 The complainants argue that the respondent abused its authority by mechanically and rigidly assessing the requirement for significant HQ experience, thereby fettering its discretion, the fifth category of abuse of authority in the Tribunal’s framework.

109 The respondent relies on Pugh v. Deputy Minister of National Defence et al,, [2007] PSST 0025, and submits that this decision stands for the proposition that similar treatment of candidates negates abuse of authority. It is important to emphasize that the Pugh decision does not stand for such a broad-based principle. The Tribunal’s decision must be read in its context. In Pugh, the Tribunal determined that reducing the time given to candidates for a presentation in order to assess the ability to work quickly under pressure was appropriate. It was only after making this determination that the Tribunal proceeded to find that consistent application of the appropriate assessment tool to all candidates was fair and reasonable. However, if there is a fundamental flaw with the assessment tool, its consistent application cannot be considered proper or reasonable.

110 Subsection 30(2) of the PSEA expressly lays out the division of staffing-related authorities. The authority to assess people for the purpose of making appointments on the basis of merit is granted to the PSC under subsection 30(2) of the PSEA. This authority may be delegated to deputy heads under subsection 15(1), and may be further sub-delegated by deputy heads in accordance with subsection 24(2). Accordingly, departmental officials who are sub-delegated the authority to assess candidates perform that function on behalf of the PSC.

111 This distinction is important because, as a sub-delegate of the PSC, an assessment board has no authority to set qualifications; only to assess candidates. Subsection 30(2) of the PSEA directly authorizes deputy heads to establish essential and other qualifications. Deputy heads may delegate that authority under subsection 24(1) and departmental officials who are delegated to set qualifications are performing that function on behalf of the deputy head.

112 In today’s fully delegated environment, the same person may exercise the deputy head’s authority to establish qualifications, and the PSC’s authority to assess people, in a given appointment process. While this may give the appearance of a single, overall staffing authority, that is not the case.

113 The evidence before the Tribunal is that, in this appointment process, an assessment board was established to assess candidates against the merit criteria, including the criteria that were used for screening purposes. The assessment board was not delegated the authority to establish essential qualifications. The essential qualifications were established by the ADM, who was not a member of the assessment board. Therefore, there is some separation between the distinct staffing-related authorities that were exercised in this process.

114 There are three decisions made by the assessment board that are alleged to constitute abuse of authority. These are in addition to the matter of equivalencies, which has been addressed as part of the analysis of the establishment of the essential qualifications.

115 Based on the evidence, the Tribunal has found that it was the assessment board that decided that time spent as a Trainee did not meet the requirement for significant HQ experience.

116 The Tribunal is satisfied that, in making this determination, the assessment board members demonstrated their comprehension of the essential qualification that had been established by the ADM, and assessed candidates against that requirement, as is the role of an assessment board.

117 Secondly, the assessment board determined that candidates were required to have met the essential qualifications used for screening purposes by the closing date for applications to this appointment process, namely March 16, 2006.

118 The ADM did not specify a deadline by which candidates would have to meet the essential qualifications used for screening purposes. This decision by the assessment board is within its authority to assess candidates and was made in consultation with Human Resources. The Tribunal accepts the respondent’s argument that to have provided flexible, elastic timeframes for demonstrating essential qualifications for screening purposes would have been impractical; the board would have then had an obligation to assess and reassess candidates’ qualifications throughout the appointment process.

119 Finally, the assessment board determined that to meet the stated requirement for “approximately 12 months” HQ experience in each of two assignments, candidates would need a minimum of 11 months in each assignment, and that 22 months would be needed to meet the stated requirement for “approximately 24 months” HQ experience in one assignment.

120 The wording of the qualification – significant HQ experience – as well as the use of “approximately” in the definition of significant is imprecise and vague. However, based on the evidence, the Tribunal is satisfied that the assessment board knew that the ADM was seeking candidates who had been in charge of a file throughout a full planning and fiscal cycle, thereby demonstrating a full understanding of how headquarters works and the machinery of government.

121 The use of “approximately” actually provided the assessment board with guidance, while allowing for discretion in seeking candidates with the required experience. The concept of discretion refers to decisions where the law does not dictate a specific outcome. Administrative discretion involves an authority to choose from among more than one possible course of action. The discretion afforded to the assessment board was not, of course, absolute. As the Tribunal has held in Tibbs, at paragraph 68: “Discretion in staffing processes must be exercised in accordance with the nature and purpose of the PSEA.” This approach has been endorsed by the Tribunal in subsequent decisions.

122 Equally important, discretion provided to delegated decision-makers must be exercised in accordance with administrative law principles. It is well established law that policies or guidelines cannot be adopted so as to fetter the decision-maker’s discretion. In the exercise of discretionary authority, discretion must be brought to bear on every case; each case must be considered on its own merits. (See, for example: Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2 and Dorothea Knitting Mills Ltd. v. Canada (Minister of National Revenue – M.N.R.), [2005] F.C.J. No. 394, 295 F.T.R. 314 (F.C.T.D.)).

123 Thus, where a delegate is granted discretionary authority, as is the case here, and, instead of exercising this discretion, relies solely on the application of a guideline to assess a particular essential qualification, this may constitute an abuse of authority. It may be determined that a strict application of the guideline fetters the ability of the delegate to consider individual cases with an open mind.

124 In Canada (Attorney General) v. Blashford,[1991] 2 F.C. 44, F.C.J. No. 23 (Q.L.)(C.A.), to meet the requirement for “considerable second-level supervisory experience” established by the department, an assessment board imposed the following guideline: candidates had to have two years’ second-level supervisory experience within the preceding five years, with one of the two years being continual experience.

125 The Court found in that case that the effect of the changes made to the qualification by the selection board had a restricting effect on the assessment of candidates. Mr. Justice Marceau, in his reasons, wrote:

[6] (…) the decision to restrict the scope of a basic requirement – expressed by the Department in terms left open to practical and relative appreciation – by introducing rigid temporal criteria was made by the Selection Board itself and alone; the restriction could obviously not afford a sounder basis for selection according to merit, its sole effect being to render more mechanical and more restrictive the screening process; and finally, there were candidates like the respondents who were certainly prejudiced by the newly created “roadblock”, since they were automatically eliminated from the competition when their experience could not readily be said not be (sic) have been “considerable” enough to be admitted (…)

126 For his part, in his concurring reasons, Mr. Justice MacGuigan was of the view that the Appeal Board was correct when it identified that the guideline that the selection board had developed to assess the qualification “considerable second-level supervisory experience” had the character of arbitrariness.

127 Moreover, in the context of the PSEA, where recourse is now focussed on the exercise of discretion in appointment processes, an assessment board should not refuse to exercise its discretion through strict application of a guideline which fetters its ability to assess each candidate with an open mind. Where the Tribunal determines that the assessment board has fettered its discretion in this way, it may find that the assessment board abused its authority.

(i) Did the respondent abuse its authority in assessing significant HQ experience in respect of Mr. Bowman?

128 Mr. Bowman’s argument is that his time spent as a Trainee should be recognized as HQ experience. He and the other complainants testified that, as Trainees, they were assigned duties that were similar to other FSOs.

129 Based on the evidence of Ms. Guimond, the Tribunal finds as a fact that the assessment board rejected Trainee time for the following reasons: first, Trainees do not have charge of a full file; secondly, they are moved from one assignment to another; and, lastly, they spend a significant amount of time attending a number of training courses.

130 It is clear that the assessment board exercised its discretion when it turned its mind to whether it was appropriate to accept Trainee time in its assessment of candidates. There is no evidence that the assessment board applied a rigid guideline and failed to use an open mind in reaching its decision not to consider Trainee time. As such, there is no substance to the allegation that the assessment board fettered its discretion when assessing Mr. Bowman.

131 Mr. Bowman has not presented any clear, convincing evidence that the respondent abused its authority in assessing his qualifications in respect of significant HQ experience.

(ii) Did the respondent abuse its authority in assessing significant HQ experience in respect of Mr. Lupul?

132 Mr. Lupul argues that the time he spent pursuing his Master of Laws should be considered to be HQ experience, or its equivalent. He testified as to the relevance of his graduate studies to the work at CIC and to the unique contribution his thesis has made in the area of immigration law.

133 The Tribunal has already determined that the respondent was not required to establish, or accept, equivalencies to essential qualifications. The evidence before the Tribunal is that, while he was studying, Mr. Lupul was not assigned any files and was not located in HQ.

134 It is clear that the assessment board exercised its discretion when it turned its mind to whether Mr. Lupul’s studies met the requirement for work experience in HQ. There is no evidence that the board applied a rigid guideline and, as such, there is no substance to the allegation that the assessment board fettered its discretion when assessing Mr. Lupul.

135 Mr. Lupul has not presented any clear, convincing evidence that the respondent abused its authority in assessing his qualifications in respect of significant HQ experience.

(iii) Did the respondent abuse its authority in assessing significant HQ experience in respect of Mr. Grundison?

136 Mr. Grundison submits that his HQ experience should have been assessed as of the date his application was reviewed for screening purposes, or at the time of his informal discussion when, he submits, the final decision on his experience qualifications was made.

137 The Tribunal has already determined that requiring candidates to demonstrate that they meet the essential qualifications used for screening purposes by the closing date for applications is not an abuse of authority.

138 Mr. Grundison also argues that his total HQ experience is sufficient to meet the requirement for significant HQ experience. In addition to a four-month assignment in 1994, Mr. Grundison was in a continuous assignment in HQ from August 2004 until the closing date for applications on March 16, 2006. The evidence before the Tribunal is that Mr. Grundison had 18 to 19 months HQ experience in one assignment and a total of 22 to 23 months HQ experience.

139 Ms. Guimond testified that short assignments could not be accumulated to add up to the required time, and that Mr. Grundison’s 18 to 19 month assignment did not meet the required time by the closing date for receipt of applications.

140 Both Mr. Grundison and Ms. Guimond limited their testimony to the issue of length of experience in HQ assignments; neither provided testimony about the nature or substance of Mr. Grundison’s HQ experience.

141 Based on the evidence at hearing, the Tribunal finds that Mr. Grundison was not aware that the screening board was tasked with seeking candidates who had a good understanding of the machinery of government in Ottawa, as demonstrated by having charge of a file throughout a full fiscal or planning cycle. As such, it is understandable that Mr. Grundison approached the matter in this fashion.

142 What is evident, however, is that the respondent did not assess the nature and/or quality of Mr. Grundison’s experience to determine if it met the essential qualification as established by the ADM. In the cases of both Mr. Bowman and Mr. Lupul, the respondent explained their eliminations from the appointment process in terms directly related to the substance of the requirement for significant HQ experience; they did not have the kind of work experience that was sought. However, in the case of Mr. Grundison, the respondent has relied only on a simple, mathematical explanation for his elimination. He did not have the minimum acceptable two 11-month or one 22-month assignment at the time that his application was received.

143 The respondent argues that consistent treatment of candidates negates abuse of authority and that this assessment board consistently applied the criteria for significant HQ experience to all candidates. As stated earlier, if there is a fundamental flaw with the assessment tool, its consistent application cannot be considered proper or reasonable. Moreover, the Tribunal may find that an assessment board abused its authority in an appointment process when, instead of exercising its discretion, it strictly applied a guideline, thereby fettering its discretion.

144 In the case of Mr. Grundison, as in Blashford, the assessment board has introduced and applied rigid temporal criteria to an essential qualification that was crafted to be flexible and allow for discretion.

145 The assessment board may have believed that it was being generous by reducing the requirement from 24 to 22 months in one assignment, and from 12 to 11 months in each of two assignments. According to Ms. Guimond’s testimony, this was done to allow for the practicalities around the timing of rotational assignments. It would be difficult to characterize either of these motives as negative. Unfortunately, the effect of introducing and applying these inflexible, albeit reduced, time requirements has been to eliminate the room for discretion that was built into the original qualification.

146 The ADM provided guidance for both candidates and the assessment board by defining significant in terms related to approximate time. Although not fully informative, this definition properly provided for assessments based on judgement. Additionally, based on the evidence, the assessment board knew what kind or quality of experience the ADM was seeking.

147 Here the ADM established a definition of the essential qualification that contained approximate timeframes. In Blashford, the notion of timeframes was introduced by the selection board. Also, the Court determined in Blashford that the decision to alter the qualification was made by the selection board itself and alone, without the participation of the hiring department. In the case before this Tribunal, the assessment board consisted of CIC managers. Nevertheless, given the distinct separation of staffing-related authorities in subsection 30(2) of the PSEA, the assessment board acted outside its authority.

148 The assessment board’s application of the altered, strictly temporal measure in such a rigid fashion rendered the assessment of Mr. Grundison’s HQ experience a mechanical exercise which had the character of arbitrariness.

149 Mr. Grundison’s application to this appointment process was part of the evidentiary record. There were no questions, either on direct or in cross-examination, on the nature or quality of his HQ experience in his application. His application reads in part:

managed $6.5M high-profile policy development pathfinder project through two business and budgetary planning cycles (now mid-way through second cycle) (…)

(…) supervised seven policy officers and one support staff at NHQ

(…) Policy Development; Programs or policies usually associated with other branches (…) includes significant interdepartmental component

150 None of the evidence before the Tribunal demonstrates that Mr. Grundison’s HQ experience was assessed in any qualitative way. Based on the respondent’s own evidence, the Tribunal finds that the only assessment of Mr. Grundison’s HQ experience was against the strict temporal requirement, which was added by the assessment board, although it had no authority to do so, and, which, in its application, eliminated the exercise of judgement and discretion from the assessment.

151 In summary, based on the evidence, the assessment board fettered its discretion by adopting a rigid guideline, and applying it in its assessment of Mr. Grundison’s application. In fettering its discretion in this manner, rather than fulfilling the responsibility it was charged with, the assessment board failed to assess Mr. Grundison’s HQ experience in any meaningful way.

152 The PSC submits that there would be an abuse of authority only where improper intent is established or can be imputed.

153 The Tribunal has addressed the matter of intention in Tibbs, as follows:

[73] While abuse of authority is more than simply errors and omissions, acting on inadequate material and actions which are, for example, unreasonable or discriminatory may constitute such serious errors and/or important omissions to amount to abuse of authority even if unintentional.

[74] (…) It could not have been envisioned by Parliament that, for example, when a manager unintentionally makes an appointment that leads to an unreasonable or discriminatory result, there would be no recourse available under the PSEA. When a manager exercises his or her discretion, but unintentionally makes an appointment that is clearly against logic and the available information, it may not constitute bad faith, intentional wrongdoing, or misconduct, but the manager may have abused his or her authority.

154 Similarly, when a manager exercises his or her discretion, but eliminates a person from consideration for appointment in a manner that is clearly against logic and the available information, it may not constitute bad faith or intentional wrongdoing, but the manager may have abused his or her authority.

155 The Tribunal has further established in Visca v. Deputy Minister of Justice et al., [2007] PSST 0023, and in Rinn v. Deputy Minister of Transport, Infrastructure and Communities et al., [2007] PSST 0044, that the PSC’s proposed approach to abuse of authority would be contrary to the legislative purpose and intent of the PSEA.

156 In Tibbs, at paragraph 66, the Tribunal has also established that: “(…) abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority.”

157 In this case, the Tribunal has no evidence before it of improper intent. The assessment board acted outside its authority when it went beyond interpreting and assessing an essential qualification to altering the essential qualification. This is clearly improper conduct.

158 More seriously, the assessment board’s application of the altered qualification in its assessment of Mr. Grundison’s HQ experience rendered his assessment completely mechanical. These actions fettered the assessment board’s discretion and resulted in Mr. Grundison being eliminated from consideration for appointment. Even in the absence of improper intent, this improper conduct is sufficiently serious in its nature and degree that, in the context of the administration of appointments under the PSEA, it amounts to abuse of authority.

Decision

159 For the reasons stated above, Mr. Bowman’s complaint is dismissed.

160 For the reasons stated above, Mr. Lupul’s complaint is also dismissed.

161 For the reasons stated above, Mr. Grundison’s allegation that the establishment of significant HQ experience as an essential qualification is an abuse of authority is not founded. However, Mr. Grundison’s allegation of abuse of authority in the assessment of his HQ experience is founded. Mr. Grundison’s complaint is substantiated.

Corrective Action

162 The Tribunal’s authority with respect to remedy is found at subsection 81(1) of the PSEA, which reads 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.

163 The following passage from Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4^th ed. (Markham: Butterworths, 2002), at 66-69, provides guidance:

As Reed Dickerson points out, in ordinary usage each of these words (“and” and “or”) has two distinct senses and therefore each is a frequent source of ambiguity:

(…)[I]t is not always clear whether the writer intends the inclusive “or” (A or B or both) or the exclusive “or (A or B, but not both) (…) [T]here is a corresponding, though less frequent, uncertainty in the use of “and”. Thus it is not always clear whether the writer intends the several “and” (A and B, jointly or severally) or the joint “and” (A and B jointly, but not severally).

Using “or” in an inclusive sense, like using “and” in a joint and several sense, is grammatically correct and accords with both popular and legal usage.

Dickerson also points out that in legislation “or” tends to be used inclusively and “and” tends to be used jointly and severally.

164 Based on the principles of statutory interpretation, it is clear that Parliament intended the term “and” in subsection 81(1) to be used jointly and severally. As such, the Tribunal finds that it has the remedial power to either order that an appointment be revoked, or not made as the case may be, or order corrective action, or both.

165 Mr. Grundison does not request the revocation of any appointment made as a result of this appointment process. There is no evidence before the Tribunal that any of the persons appointed are not qualified, nor is there any evidence of any other circumstance that would warrant the revocation of any appointment.

166 Mr. Grundison requests that the respondent be ordered to properly assess him with respect to significant HQ experience and, if he meets that essential qualification, proceed to complete his assessment with respect to the remaining merit criteria. Having determined that the respondent abused its authority in this matter, the Tribunal is satisfied that this course of action would constitute appropriate corrective action in this instance. The Tribunal also notes that, since the respondent was unable to fill all the FS-04 vacancies as a result of this appointment process, the possibility of a successful outcome for Mr. Grundison would not unduly impact any successful candidate, or the respondent.

167 Mr. Grundison also requests that, should he be found qualified and be appointed as a result, his appointment be retroactive to the appointment date of the other successful candidates in this appointment process.

168 Section 82 of the PSEA expressly prohibits the Tribunal from ordering the PSC to make an appointment, or to conduct a new appointment process. While Mr. Grundison is not explicitly requesting that the Tribunal order his appointment, the Tribunal is not prepared to order the corrective action sought. Mr. Grundison was screened out of the appointment process at the preliminary assessment stage, namely when applications were first assessed. There were, and still may be, a number of qualifications to be assessed. Given this, the Tribunal is not prepared to make this order.

Order

169 The Tribunal orders the respondent to assess Mr. Grundison’s qualifications, as demonstrated in his application to appointment process 06-IMC-IA-IR-001, in respect of the essential qualification significant HQ (headquarters) experience in CIC, CBSA (Canada Border Services Agency) or OGD (other government department) in an area related to the immigration or citizenship programs or in corporate services (for example: finance, human resources, material management).

Merri Beattie

Member

Parties of Record

Tribunal Files:

2007-0045, 0046 & 0047

Style of Cause:

Timothy Bowman, John Bruce Grundison and Philip Lupul and the Deputy Minister of Citizenship and Immigration Canada et al.

Hearing:

September 5, 6 and 7, 2007
Ottawa, Ontario

Date of Reasons:

May 26, 2008

Appearances:

For the complainant:

Paul Champ

For the respondent:

Karen Clifford

For the Public
Service Commission:

Angie Paquin