FPSLREB Decisions

Reasons for Decision

Introduction

1 Jean Lavigne, the complainant, alleges abuse of authority by the respondent, the Deputy Minister of Justice, because, in his view, the essential criteria used to eliminate him at the screening stage contained factors that were not included in the statement of merit criteria posted on Publiservice. He requests that the appointment processes be declared void ab initio,and that the appointments and proposed appointments be revoked. He seeks moral and punitive damages.

2 The complainant filed these complaints with the Public Service Staffing Tribunal (the Tribunal) under paragraph 77(1)(a)of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA). Under section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-06 (the PSST Regulations), the Tribunal consolidates files 2007‑0241, 2007‑0242, 2007‑0274, 2007‑0314, 2007‑0400 and 2008‑0384 for the purposes of this decision.

3 In accordance with subsection 99(3) of the PSEA, the Tribunal decided the complaint without holding an oral hearing. The decision was rendered based on the parties’ written arguments and the numerous documents on file, which were reviewed in detail and are summarized below.

Issues

4 In order to resolve these complaints, the Tribunal must decide the following issues:

1. Did the Tribunal breach the rules of natural justice by conducting a paper hearing?
2. Did the respondent abuse its authority by sub-delegating the establishment of the merit criteria to the assessment board?
3. Did the respondent abuse its authority by dating the document “Rationale of the Merit Criteria for the Appointment Selection” [Translation] September 8, 2006 rather than September 22, 2006?
4. Did the respondent abuse its authority by eliminating the complainant on the basis of definitions not included in the Publiserviceposting?
5. Did the respondent fail to ensure that the informal discussion was conducted in accordance with the PSEA?
6. Is the complainant entitled to moral and punitive damages?

Background

5 The positions of Team Leader (LA-2B 02) (process number 2006-JUS-MTL-DAF-IA-130) and Senior Practitioner (LA-2B 02) (process number 2006-JUS-MTL-DAF-IA-89) with the Department of Justice’s Tax Litigation Directorate in Montreal were posted on Publiservice on September 18, 2006. The closing date was October 2, 2006, for both positions.

6 The complainant applied for both positions on October 2, 2006. A total of eight candidates, including the complainant, applied for the Team Leader position, and 14 candidates, including the complainant, applied for the Senior Practitioner position.

7 The document “Rationale of the Merit Criteria for the Appointment Selection,” approved by Henri Bédirian, the delegated manager, contained information on the experience requirements for both positions. It is helpful to reproduce here the relevant portion of the rationale. The Tribunal will use the terms “left column” and “right column” in its reasons to refer to the merit criteria or the rationale, respectively:

Document posted on Publiservice	Document used by the assessment board
MERIT CRITERIA	MERIT CRITERION RATIONALE HOW THE CRITERION WILL BE USED IN ASSESSING CANDIDATES Make the connection with human resources planning
ESSENTIAL QUALIFICATIONS	The candidate chosen for the position will be the one who receives the highest total score for the essential qualifications.
"Extensive and recent experience" in conducting complex and varied civil litigation before the Tax Court of Canada.	"Extensive and recent experience" means approximately 10 years of experience in conducting cases of average complexity involving the various provisions of the Income Tax Act and the Employment Insurance Act, including at least two years of experience acquired during the last two years.
Very good experience in conducting litigation before the Federal Court of Appeal.	"Very good experience" means that the lawyer is familiar with the conduct of such cases, having had the opportunity during his or her years of experience to prepare briefs and argue employment insurance or contribution cases on appeal before the Federal Court of Appeal.

[Translation: right column only]

8 The left column contains the essential merit criteria for the experience requirements as listed in the Publiservice postings of September 18, 2006. The right column provides greater detail on assessing experience to screen the candidates; that information was not posted on Publiservice.

9 The document is dated September 8, 2006, but was signed by Mr.Bédirian on September 22. According to the evidence on file, September 8 is the date on which Mr. Bédirian prepared and authorized these definitions.

10 Following a review of the complainant’s résumé, he was informed by e‑mail on October 31, 2006 that both of his applications had been screened out for the following reason:

The assessment board concluded that your experience does not meet the following essential merit criterion applied in the screening process: Extensive and recent experience in conducting complex and varied civil litigation before the Tax Court of Canada.

[Translation]

11 Since the complainant did not meet the requirement of 10 years’ experience, he was not assessed against the second essential qualification, namely, experience before the Federal Court of Appeal.

12 The same day, the respondent sent the complainant a document containing essentially what appears in the left and right columns of the above-mentioned table with respect to the experience criterion. This was the first time the complainant saw the information in the right column.

13 An informal discussion took place on December 15, 2006 between the complainant andMarie-Andrée Legault, Valérie Tardif and Daniel Verdon, who were on the assessment board, and Monique Renaud, Human Resources Advisor.

14 A pool of qualified candidates for the two appointment processes was established. The respondent subsequently made appointments from the pool. The complainant filed a complaint against each of the appointments.

No oral hearing/Paper hearing

Issue 1: Did the Tribunal breach the rules of natural justice by conducting a paper hearing?

A) Complainant’s arguments

15 The complainant objects to the Tribunal’s decision to conduct a paper hearing to decide his complaints, as it did for complaint number 2007‑0565, which was the subject of Lavigne v. Deputy Minister of Justice et al.,[2007] PSST 0045.

16 According to the complainant, this decision by the Tribunal deprives him of the opportunity to call witnesses and cross-examine the respondent’s witnesses. Section 27 of the PSST Regulations does not permit the Tribunal to ignore the rules of natural justice, or to deny the complainant the right to be heard before his case is decided.

B) Respondent’s arguments

17 The respondent submits that the reason why the complainant was not appointed is clear, and the Tribunal has ample evidence to support this reason.

18 The complainant’s allegations, even if proven through testimonial evidence, would not lead the Tribunal to find that an abuse of authority occurred. He had an opportunity to present his arguments. A hearing with witnesses would constitute a fishing expedition by the complainant.

19 If the Tribunal were to accept the complainant’s arguments, it would be required to hold oral hearings in all cases. However, subsection 99(3) of the PSEA must have a purpose.

C) Public Service Commission’s arguments

20 According to the Public Service Commission (the PSC), the Tribunal’s decision to proceed without an oral hearing, as provided for in the PSEA,does not breach the rules of natural justice.

D) Complainant’s reply

21 With respect to the Tribunal’s decision to proceed without an oral hearing, the complainant also questions the Tribunal Member’s independence and credibility, and is skeptical as to how his complaints will be handled.

E) Analysis

22 The complainant argues once more that justice has been denied because the Tribunal chose to decide his complaints by means of a paper hearing. The complainant would have preferred to have the opportunity to be heard at a hearing and raise the issue of the Tribunal’s process.

23Two provisions of the PSEA address this issue: subsection 98(1), which states that ,“[a] complaint shall be determined by a single member of the Tribunal, who shall proceed as informally and expeditiously as possible,” and more particularly subsection 99(3), which clearly states that “[t]he Tribunal may decide a complaint without holding an oral hearing.”

24 As the Tribunal has previously decided in Lavigne, which involved the same complainant, the Tribunal may decide a complaint without holding an oral hearing. The Tribunal also stated the following:

[15] (…) Subsection 99(3) of the PSEA is clear; the Tribunal is not required to hold an oral hearing. Generally speaking, deciding a motion or complaint on the merits based on the written documentation is more efficient, reduces the waiting time for a decision and makes better use of the Tribunal's limited resources. The Tribunal is responsible for deciding whether to hold an oral hearing, and the Tribunal makes an informed decision on the basis of all the circumstances of a case. The parties are still given an opportunity to be heard, albeit in writing.

25 Moreover, section 27 of the PSST Regulations states that “[t]he Tribunal is master of the proceedings and may determine the manner and order of the presentation of evidence and arguments at the hearing.”

26 When the Tribunal chose to decide these complaints without an oral hearing, it had a considerable amount of information on file, such as the complaint, the complainant’s allegations, which amount to several pages, and the respondent’s reply. As well, the parties exchanged an impressive number of documents (about 90), including numerous e‑mails, of which the Tribunal requested and received copies. There was admittedly duplication, but the Tribunal nevertheless had an accurate idea of the reason for the complaint, together with the positions of the parties, and had all the information needed to proceed without an oral hearing.

27 The complainant submits that he could have called witnesses and cross‑examined the respondent’s witnesses. He provided examples of potential testimony. However, the Tribunal finds that it is not necessary to hear witnesses in order to decide the complaints since the main issue is the application of the merit criterion rationale used to eliminate the complainant from the appointment processes.

28 Accordingly, the Tribunal finds that holding a paper hearing does not breach the rules of natural justice.

Delegation

Issue 2: Did the respondent abuse its authority by sub-delegating the establishment of the merit criteria to the assessment board?

A) Complainant’s arguments

29 According to the complainant, Mr. Bédirian, the delegated manager, was required to comply strictly with the terms of the authority sub-delegated by the Deputy Minister of Justice on April 11, 2006, and with the Department of Justice’s Appointment Delegation and Accountability Instrument.

30 The complainant submits that Mr. Bédirian was required to establish objective merit criteria and include them in the postings. He failed in that task and in his duty to ensure fairness, transparency and respect as required by the PSEA and the Delegation Policy when he approved the final versions of the statements of merit criteria, which do not include any of the information from the right column. Mr. Bédirian therefore blatantly abused his authority with respect to the complainant and the other candidates when he established the following requirement:

“Extensive and recent experience” means approximately 10 years of experience in conducting cases of average complexity involving the various provisions of the Income Tax Act and the Employment Insurance Act.

It was the requirement for 10 years of experience that resulted in the complainant being screened out of the process.

31 The complainant alleges that Mr. Bédirian failed in his duty by improperly sub‑delegating his appointment authority. He allowed the assessment board to make arbitrary and secret use of the requirement of 10 years of experience as if it were an objective merit criterion whereas it was an arbitrary screening out tool inconsistent with the policies in effect. Mr. Bédirian authorized the board to screen him out of the appointment processes on the basis of a merit criterion not appearing in the Publiservicepostings.

B) Respondent’s arguments

32 The respondent submits that the manager, Mr. Bédirian, did not sub-delegate his appointment authority. It was not necessary for him to personally take part in all stages of the candidates’ assessment process.

C) Public Service Commission’s arguments

33 The PSC addressed the issue of delegation by directing the Tribunal’s attention to certain provisions of the PSEA. However, the PSC offered no specific arguments on the issue of delegation in this case.

D) Analysis

34 The complainant submits that Mr. Bédirian improperly sub-delegated his delegation authority by authorizing the assessment board to apply requirements that were not included in the Publiservicepostings. The board then used those requirements to eliminate the complainant from the appointment processes.

35 According to the evidence, however, it was not the assessment board that prepared and approved the requirements found in the merit criterion rationale. That was done by Mr. Bédirian, and it was he who approved the merit criteria. There was thus no sub‑delegation to the assessment board, as the complainant alleges.

36 Moreover, as the respondent stated, it was not necessary for Mr. Bédirian to take part in each stage of the candidate assessment process. Under section 36 of the PSEA, managers have substantial discretion in the selection and use of assessment methods to determine whether a candidate meets the qualifications established for a given position. See Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011, and Visca v. Deputy Minister of Justice et al., [2007] PSST 0024.

37 Section 36 of the PSEA reads as follows:

36. In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

(Emphasis added)

38 The fact that a manager to whom staffing authority has been sub‑delegated does not take part in each stage of the candidate assessment process is not in and of itself an abuse of authority. The Tribunal held in Visca that the broad discretion given to managers in assessing criteria enabled them to use multiple panels composed of different individuals. In paragraph 61 of Visca, the Tribunal stated:

[61] The complainant has the burden of proving allegations of abuse of authority. It was incumbent on the complainant to demonstrate through cogent evidence that the use of multiple panels in this appointment process led to an abuse of authority of a type contemplated by the Tribunal in Tibbs, supra. He has provided no such evidence. On the contrary, the Tribunal is satisfied on the evidence that the process chosen for the reporting of the panels, as well as the fact that Mr. Wilson was a member of all of the panels, ensured consistent reporting to and assessment by the selection board of the merit criteria in this appointment process.

39 The Tribunal must therefore consider the complainant’s other allegations in order to determine whether he has presented convincing evidence of abuse of authority in these appointment processes.

Document of September 8, 2006

Issue 3: Did the respondent abuse its authority by dating the document “Rationale of the Merit Criteria for the Appointment Selection” September 8, 2006 rather than September 22, 2006?

A) Complainant’s arguments

40 The complainant strongly objects to the document dated September 8, 2006 by Mr. Bédirian, which was in fact completed and signed on September 22, 2006. He alleges that it is a falsification that substantially alters the merit criteria which were posted on Publiservice and which were used to screen him out of the appointment processes. Moreover, the document did not exist in complete form when the announcements were posted on Publiservice on September 18.

41 According to the complainant, this was a conscious, deceitful and reprehensible act that demonstrates abuse of authority and bad faith on the respondent’s part.

B) Respondent’s arguments

42 To ensure transparency, Mr. Bédirian adopted and put into writing a definition of some of the essential qualifications before any applications were received. In this case, he specified that the word “extensive” meant “about 10 years of experience.” The definition in the right column neither adds to nor takes away from the essential qualification of having extensive experience.

43 The respondent claims, however, that there is no requirement to adopt or put into writing such a definition. Moreover, it is not the respondent’s practice to include in statements of merit criteria definitions of the experience requirements used in screening. It is the candidate’s responsibility to contact the manager named in the posting for additional information about the experience requirements.

44 The document was completed on September 22, but was dated September 8, because that was when Mr. Bédirian prepared the definitions.

C) Public Service Commission’s arguments

45 The PSC did not submit arguments on this issue.

D) Complainant’s reply

46 The document of September 8, 2006 is a falsification. The respondent made illicit use of that document and is seeking to give it legal effect. Mr. Bédirian and Ms. Renaud chose to make misrepresentations, and their reprehensible acts have vitiated both the appointment processes and the outcome.

47 According to the complainant, the definitions in the document of September 8 effectively add to the essential qualifications.

E) Analysis

48 The complainant submits that this document is a falsification that cannot be used to add to the criteria listed in the Publiservicepostings.

49 The respondent does not deny that the date of the document is not the date of signature, but explains that Mr. Bédirian had determined the merit criteria on September 8, and signed the rationale accordingly.

50 The fact that Mr. Bédirian did not indicate the actual date on which he signed the document is admittedly not a practice that should be followed. The fact is that documents should always be dated the day they are signed. Thus, Mr. Bédirian could very well have indicated in the document that he had established the requirements on September 8, and signed it on September 22. His action admittedly falls short of the transparency expected in the public service, and certainly in the staffing system under the PSEA.

51 The complainant submits that the rationale must be ignored because it was not included in the merit criteria. This argument is addressed in the Tribunal’s analysis of the next issue.

52 However, notwithstanding the complainant’s allegation, the Tribunal cannot ignore this document simply because it was signed on September 22. The Tribunal finds that it is admissible and also finds that it was signed on September 22, that is, a few days after the merit criteria were posted on Publiservice. The candidates were, however, assessed after that date as the closing date for these appointment processes was October 2. The complainant failed to demonstrate how the signing of this document on September 22 in and of itself constituted an abuse of authority.

53 The Tribunal has examined all the circumstances of the complaint and cannot conclude that dating this document September 8 rather than September 22, the date on which the document was prepared rather than the date on which it was signed, is an abuse of authority.

54 Furthermore, whether the date is September 8 or 22, 2006, the fact remains that Mr. Bédirian was the author of the document and that he, as the sub‑delegated manager, has the authority to establish the merit criteria and select candidates for the positions to be staffed. The entire process is not vitiated, as the complainant submits, merely because the date of the document is not accurate.

55 The Tribunal therefore finds that the respondent did not abuse its authority in dating the merit criterion rationale September 8, 2006, rather than September 22, 2006, the date on which Mr. Bédirian signed it.

Assessment of essential qualifications

Issue 4: Did the respondent abuse its authority by eliminating the complainant on the basis of definitions not included in the Publiserviceposting?

A) Complainant’s arguments

56 The complainant submits that his application was improperly rejected on the basis of the merit criterion rationale that was not included in the postings, namely, the statements in the right column of the previously mentioned table. He submits that he was eliminated in a summary and arbitrary fashion from the appointment processes because the respondent was guided by the merit criterion rationale, which was not included in the merit criteria. According to the complainant, the definitions in the right column used to disqualify him should not have been used because they were not included in the postings on Publiservice.

57 The assessment board failed to give the words “extensive experience” their ordinary meaning. The complainant submits that his 30 years of experience in the practice of litigation, including three years of arguing cases before the Tax Court of Canada, constitutes extensive and recent experience.

58 The complainant submits that his résumé shows that he did very well in conducting cases before the Federal Court of Appeal, which was the second merit criterion listed on Publiservice, and which was not assessed.

59 According to the complainant, Mr. Bédirian and the team that developed the merit criteria posted on Publiservice sought to limit the number of applications by setting an artificial barrier, while making it easier for those who remained.

60 The complainant submits that even if the definition indicating 10 years of experience had been included in the Publiserviceposting, it would not have been sufficient to screen him out because it is not in and of itself an objective criterion on which an assessment of merit can be based. According to the complainant, “never in living memory has such a criterion, which is by definition vague and arbitrary, been used to define essential criteria in the Quebec Regional Office.” [Translation]

61 The complainant believes that this was a blatant abuse of authority, and that the most basic rules of procedural fairness were flouted.

62 The complainant requests that the appointment processes be declared void ab initio and that the appointments or proposed appointments be revoked.

B) Respondent’s arguments

63 The burden of proof, on a balance of probabilities, rests with the complainant. The evidence must be clear, compelling and convincing. The complainant’s allegations and arguments contain nothing to show that there was abuse of authority in the decision not to appoint the complainant to one of these positions.

64 According to the respondent, the manager, Mr. Bédirian, was in the best position to establish the essential qualifications and clarify them as required for the purposes of assessment.

65 The essential qualifications were established based on the duties to be performed. The essential qualification of “extensive and recent experience in conducting complex and varied civil litigation before the Tax Court of Canada” was not excessive for the positions of Senior Practitioner and Team Leader in the Tax Litigation Directorate. Moreover, the wording of this qualification is sufficiently clear for candidates to know what they had to demonstrate.

66 The respondent submits that, by his own admission, the complainant has only three years of experience in conducting litigation before the Tax Court of Canada. According to the manager, this does not constitute extensive experience. Anyone with only three years of experience would have been eliminated from the process.

67 The complainant suggests a different interpretation or definition for this essential qualification. In order for the complainant to qualify and potentially be appointed to one of these positions, this essential qualification would have to be either reduced or eliminated.

68 According to the respondent, the complainant’s knowledge, abilities and personal suitability are not at issue. The complainant does not have the required experience which is identified as an essential qualification. That is why he was screened out. The fact he does not meet this essential qualification does not mean that there has been an abuse of authority.

69 According to the respondent, a review of the legislative history is important in interpreting the PSEA. It is clear that Parliament’s intent was to move away from the complicated and rigid concepts of the old PSEA, and the case law developed over the years under the previous legislation.

70 The respondent submits that abuse of authority requires an element of intention. The respondent also provided case law and excerpts from doctrine in support of its position.

C) Public Service Commission’s arguments

71 The PSC argues that for abuse of authority to exist in a staffing process, there must be an element of intent, such as bad faith or favouritism, or recklessness or carelessness must be proven. The PSC also provided case law and excerpts from doctrine in support of its position.

D) Complainant’s reply

72 The complainant submits that the assessment board members abused their authority by assessing his application against a criterion that they did not have the authority to consider, namely 10 years of experience, because that definition had not been posted. At the screening stage, the board could not merely use the total number of years the complainant had spent on this activity. The criterion had not in fact been posted, and was thus not an indicator of “merit”.

73 The complainant believes that he has discharged his burden of proving that his allegations are founded regarding the existence of an abuse of authority in the conduct of the appointment processes that led to the arbitrary screening out of his application.

E) Analysis

74 The issue the Tribunal must consider is whether the use of the merit criterion rationale to eliminate the complainant from the appointment processes constitutes abuse of authority, as it contains definitions not included in the Publiserviceposting. According to the complainant, it was not necessary to define “extensive experience” as being about 10 years of experience because the term itself was sufficient.

75 In Visca, the Tribunal addressed the manager’s discretion in establishing the qualifications for a position to be staffed, and in selecting the candidate who is the right fit:

[42] Broad discretion is given to managers under subsection 30(2) of the PSEA to establish the necessary qualifications for the position they want to staff and to choose the person who not only meets the essential qualifications, but is the right fit. (…)

[43] (…) There is flexibility for managers to determine which criteria are more important than others for a position at the time of the selection process (…). Mr. Wilson made this determination and chose an assessment method that put more emphasis on two criteria, namely, extensive and recent experience, and judgment.

(Emphasis added)

76 Clearly, Mr. Bédirian had the discretion to establish the essential qualifications “extensive and recent experience in conducting complex and varied civil litigation before the Tax Court of Canada.” Similarly, he could specify what he considered that experience criterion to be. The evidence shows that he determined that “extensive experience” meant “approximately 10 years of experience in handling cases of average complexity involving a variety of provisions of the Income Tax Act and the Employment Insurance Act.”

77 In addition, the Tribunal’s recent decision in Neil v. Deputy Minister of Environment Canada et al., [2008] PSST 0004, applies. Mr. Neil, like the complainant, had been screened out from the appointment process because he did not have the three-year minimum experience that was required, but which had not been specified on Publiservice.

78 In Neil, the Publiservice posting indicated that “significant experience” was an essential qualification for the position. The manager and his team subsequently defined “significant experience” as a minimum of about three years’ experience. The final version of the document, with definitions, was completed on the last day of the screening process.

79 The Tribunal found in Neil that it was not mandatory to inform candidates of the definitions prior to candidates submitting their applications:

[50] The Tribunal wishes to emphasize that, while it is not mandatory to inform candidates of complete details of how a particular qualification will be assessed, it is in everyone’s interest to be as clear and transparent as possible in an appointment process. This will ensure that all those who do, in fact, meet a qualification can demonstrate this and proceed to the next step of the process. Therefore, it would have been preferable for the respondent to provide candidates with greater details on the Statement of Merit Criteria concerning how “significant experience” was to be assessed by the board. This approach is recommended in the Public Service Commission’s Guidance Series – Assessment, Selection and Appointment as follows:

In order to assist in the screening of applicants, it is important for the manager to develop a definition of certain words; for example, what is meant by a requirement for "recent" or "significant" experience. Once such a definition has been established, the manager or the assessment board, if requested by the manager, should be prepared to respond to inquiries and convey this information to applicants or to prospective applicants (...) Definitions are developed based on the requirements of the position, and not on the experience or qualifications persons have. Therefore, the definitions should be established prior to the review of applications or qualifications of the persons being considered.

• Example - The advertisement for a particular position indicated that persons require "Significant experience in developing policy." The manager should define the word "significant" and it could be communicated in the advertisement (…)

[51] However, failure to inform candidates of a specific definition related to a merit criterion does not, in and of itself, amount to abuse of authority. The qualification established by the managers and against which candidates would be assessed was set out in the Statement of Merit Criteria. The Tribunal finds that the qualification itself was sufficiently detailed so that candidates knew what they had to demonstrate.

[52] The PSC document also points out that definitions should be established prior to the review of applications of the persons being considered. Based on the evidence presented at hearing, the Tribunal finds as a fact that the assessment board only finalized its definition of significant experience on the same date as the screening of candidates was completed. This practice should definitely be avoided, as it could lead to an allegation that the criteria were established in order to eliminate or to favour a particular candidate. There is no evidence of such manipulation in this case.

(Emphasis added)

80 Despite the respondent’s practice of not including definitions of the merit criteria in Publiservice postings, it would have been preferable for the definitions in the right column to be included in the statement of merit criteria as stated in paragraph 50 of Neil. This practice makes the appointment process much more transparent; it may also reduce the number of candidates since they will know upon reading the notice that they do not meet the requirements, and may prevent complaints from candidates who feel aggrieved because they were not aware of these additional definitions.

81 The complainant submits that it was not necessary to explain the meaning of “extensive experience,” and that his three years’ experience was sufficient to meet the requirement. The Tribunal is of the view that, on the contrary, it is helpful for everyone to understand exactly what the manager means by “extensive experience”. The words could lead to several interpretations, as evidenced by the complainant's position.

82 In Broughton v. Deputy Minister of Public Works and Government Services et al., [2007] PSST 0020, the Tribunalexplained its role:

[54] The Tribunal’s role is to determine if there was an abuse of authority in the appointment process and not to redo the appointment process by reviewing the complainant’s experience to determine and second guess whether his experience was assessed correctly by the selection board. (…)

83 It is not for the Tribunal to assess whether the complainant's three years’ experience meets the requirements of the positions to be staffed. This is the role of the manager, who felt that extensive experience for the position to be staffed meant about 10 years of experience. On the basis of the definition of “extensive experience”, the assessment board decided that the experience of the complainant and one other candidate did not meet this essential qualification. The board even met with the complainant on December 15, 2006 to ensure that he had all the relevant information.

84 The Tribunal notes that the Publiservice posting included the contact information for Ms. Renaud, the Human Resources Advisor, who could be contacted for general information. There was nothing preventing the complainant from contacting her to obtain additional information about what constituted extensive and recent experience for these positions.

85 In conclusion, the Tribunal finds that there was no abuse of authority when Mr. Bédirian determined that for the positions to be staffed, “extensive and recent experience in conducting complex and varied civil litigation before the Tax Court of Canada” meant about 10 years of experience. Similarly, the Tribunal finds that the assessment board did not abuse its authority when it eliminated the complainant from the process on the basis of the merit criterion rationale, which contains the definitions in the right column of the table previously mentioned.

Informal discussion

Issue 5: Did the respondent fail to ensure that the informal discussion was conducted in accordance with the PSEA?

A) Complainant’s arguments

86 According to the complainant, he had no choice but to attend the informal discussion that took place on December 15, 2006 with the three members of the assessment board and Ms. Renaud. During that discussion, he tried to explain that the definition of “extensive experience” in the right column of the table, namely “approximately 10 years of experience in conducting cases of average complexity involving the various provisions of the Income Tax Act and the Employment Insurance Act” could not and should not be used to eliminate him at the screening stage or at any other stage, because it was not included in the Publiservice posting. In his opinion, it was futile.

87 Mr. Bédirian failed to ensure that the informal discussion was held in a fair and equitable manner consistent with the principles set out in the PSEA and the Informal Discussion Policy.

B) Respondent’s arguments

88 The purpose of an informal discussion, according to section 47 of the PSEA, is to discuss with a complainant the reason why they were eliminated from consideration. If a mistake was made, it can be corrected.

89 According to the respondent, the complainant was unable to demonstrate, either in his résumé or during the informal discussion, that he had the required experience.

90 The assessment board did not have to change its decision because the complainant presented no new facts.

C) Public Service Commission’s arguments

91 The PSC did not submit arguments on this issue.

D) Analysis

92 The complainant argues that he was required to submit to and attend the informal discussion. In his view, it served no purpose because the assessment board did not change its position about his work experience and the use of the merit criterion rationale. There was thus an abuse of authority.

93 The respondent argues that the complainant added nothing to his three years’ experience, and that those present were still of the view that he did not meet the requirement of about 10 years’ experience, which was an essential qualification. There was thus no reason for the board to change its decision to screen him out of the process.

94 Section 47 of the PSEA refers to informal discussions:

47. Where a person is informed by the Commission, at any stage of an internal appointment process, that the person has been eliminated from consideration for appointment, the Commission may, at that person’s request, informally discuss its decision with that person.

95 Informal discussions are part of the appointment process, providing an opportunity for dialogue between a candidate eliminated from consideration and the person who made this decision. In Neil, theTribunal discussed as follows the purpose of informal discussions:

[56] Finally, while not required for the disposition of this complaint, the complainant raised one other concern that deserves comment. In referring to his informal discussion after he had been eliminated, the complainant alleges that even when the problems with this qualification were pointed out to the manager, nothing was done to remedy the situation. In Rozka et al. v. Deputy Minister of Citizenship and Immigration Canada et al., [2007] PSST 0046, the Tribunal stated:

[76] Informal discussion is intended primarily to be a means of communication for a candidate to discuss the reasons for elimination from a process. If it is discovered an error has been made, for example, if the assessment board did not consider some information listed on a candidate’s application, this provides the opportunity for the manager to correct that mistake. However, informal discussion is not an opportunity to request that the assessment board reassess a candidate’s qualifications.

(Emphasis added)

See also Henry v. Deputy Head of Service Canada et al., [2008] PSST 0010, and Dionne v. Deputy Minister of National Defence et al., [2008] PSST 0011.

96 The informal discussion thus took place after the assessment of the candidates who were eliminated from the appointment process. During the discussion, the complainant had an opportunity to discuss his experience with the respondent, as well as the fact that the merit criterion rationale had not been included in the Publiservice posting.

97 Moreover, the complainant alleges that the respondent did not comply with its own Informal Discussion Policy, and that this constituted an abuse of authority. Since the Tribunal has already found that the respondent did not abuse its authority in defining “extensive experience” as approximately 10 years, the complainant has failed to show that the respondent abused its authority in this matter during the informal discussion.

98 The Tribunal also finds that the complainant did not demonstrate that the respondent failed to comply with the Informal Discussion Policy. Even if this were the case, this would not be an error of law in the exercise of discretion that would constitute abuse of authority. In Kane v. Deputy Head of Service Canada et al.,[2007] PSST 0035, the Tribunal discusses agency guidelines:

[73] (…) Guidelines can be a form of law: Bell Canada v. Canadian Telephone Employee Assn., [2003] 1 S.C.R. 884, [2003] S.C.J. No. 36 (Q.L.). However, the PSHRMAC Guidelines have not been issued under the PSEA or regulations under the PSEA and are, therefore, not a form of law akin to regulations. As such, even if the respondent misinterpreted these guidelines, which is not necessary to decide for the disposition of this case, such a misinterpretation does not equate to an erroneous view of the law as to amount to an abuse of authority. The Tribunal finds that the respondent has not contravened the provisions of the PSEA in this appointment process.

(Emphasis added)

99 The Tribunal therefore finds that the respondent conducted an informal discussion in accordance with the PSEA, and finds the complainant's allegations concerning informal discussion without merit.

Damages

Issue 6: Is the complainant entitled to moral and punitive damages?

A) Complainant’s arguments

100 The complainant alleges that Mr. Bédirian and the employees who took part in the appointment process and the preparation of the document dated September 8blatantly abused their authority in this case, which caused him irreparable personal and professional harm.

101 The complainant argues that Mr. Bédirian led the complainant to reveal personal information about himself to the assessment board, which he would not have revealed had he known that those concerned would secretly use the unadvertised elements in the right column to eliminate him from the process.

102 The complainant requests moral damages in the amount of $100 and punitive damages of $100 from each of the five people involved in the process.

B) Respondent’s arguments

103 The respondent submits that the Tribunal does not have the power to award damages in this case.

C) Public Service Commission’s arguments

104 The PSC submits that neither the complainant's request that the two processes in question be declared void ab initio, nor the request for moral and punitive damages, lies within the corrective action the Tribunal may order under subsection 81(1) of the PSEA. If the Tribunal finds that the complaint of abuse authority is justified, the appropriate remedy is revocation of the challenged appointments, and application of corrective action.

D) Complainant’s reply

105 The Tribunal has the authority to award the remedy requested.

E) Analysis

106 Since the complaint is not substantiated, the Tribunal need not address this issue.

Decision

107 For all these reasons, the complaints are dismissed.

Sonia Gaal

Vice-Chair

Parties of Record

Tribunal Files:

2007-0241, 0242, 0274, 0314, 0400 and 2008-0384

Style of Cause:

Jean Lavigne and the Deputy Minister of Justice et al.

Hearing:

Decided without the appearance of the parties

Date of Reasons:

May 27, 2008

Appearances:

For the complainant:

Jean Lavigne

For the respondent:

Martin Desmeules

For the Public
Service Commission:

Lili Ste-Marie