FPSLREB Decisions

Reasons for Decision

Introduction

1Dale Richards, the complainant, is a Fisheries Officer with the Department of Fisheries and Oceans in Truro, Nova Scotia. He participated in an internal advertised appointment process to staff GT-05 Field Supervisor positions, Conservation and Protection (C&P), in various locations in Nova Scotia. The complainant alleges that the assessment board relied on inappropriate references when it conducted his assessment. Although his references were reassessed following informal discussion, he alleges that the assessment board had already decided who would be appointed and did not fairly consider him.

2The Deputy Minister of Fisheries and Oceans, the respondent, denies that there was any abuse of authority in this appointment process. The respondent maintains that the complainant’s references were fairly reassessed following informal discussion, and that the criteria chosen to determine the right fit for appointment were reapplied to all qualified candidates, including the complainant.

Background

3Two positions in Eastern Nova Scotia were advertised in this appointment process; however, the position in St. Peter’s, N.S. was staffed on a bilingual imperative basis. The complainant applied only for the position in Truro, N.S.

4The complainant was informed that he was eliminated from the appointment process because he had failed to meet one of the essential qualifications, namely dependability, which was assessed by references. He attended an informal discussion meeting and subsequently provided information and documents for the assessment board’s consideration. On July 31, 2007 the complainant was informed that the assessment board had discussed the information he provided and had revised his assessment for dependability. Based on the reassessment, the complainant was found qualified, and was placed in a pool of qualified candidates.

5On August 23, 2007 a Notification of Appointment or Proposal for Appointment was issued on Publiservice for appointments in Truro and St. Peter’s, Nova Scotia. The complainant brought a complaint of abuse of authority to the Public Service Staffing Tribunal (the Tribunal) under paragraph 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (the PSEA) on September 7, 2007.

Issues

6The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in assessing the complainant based on his references?
2. Did the respondent abuse its authority by failing to fairly consider the complainant?

Summary of Relevant Evidence

7Ross Jones, Coordinator, Special Projects was responsible for the coordination and oversight of the GT-05 appointment process. He was not an assessment board member, but he conducted all but one of the reference checks for the process.

8Mr. Jones testified that he reviewed the reference questions for interpersonal relationships and dependability. He developed the reference questionnaire, which he discussed with Human Resources. He explained that the assessment board set a target of three references for each candidate and wanted current or past supervisors, including acting supervisors, or possibly the Area Chief or Director.

9Mr. Jones stated that he conducted the reference checks over a two to three month period. He identified three reference questionnaires and confirmed that the notes were those he had recorded during reference checks that he conducted concerning the complainant. He acknowledged that his notes were not verbatim since he did not record some information that he identified as second-hand. He also stated that he used some paraphrasing.

10Mr. Jones identified a series of emails that he and the complainant exchanged on June 11, 2007. He explained that the “acting C&P Supervisor Burnside” mentioned in the emails was Tim Owen, from whom he had obtained a reference. Mr. Jones stated that he was familiar with the environment and knew who the supervisors were. He was “pretty sure” that Mr. Owen was the complainant’s current supervisor. Mr. Jones stated that Mr. Owen told him that he had acted for a long time and had supervised the complainant. He stated that, had he known that someone else was acting supervisor on that day, he would still have chosen Mr. Owen because he had supervised the complainant longer and was better able to provide a reference.

11Mr. Jones explained that he was having trouble finding current or recent references for the complainant, and received a suggestion from the Area Chief. He sent the complainant the email on June 11, 2007 to obtain his views on one possible reference. The complainant did not want that person to provide a reference so he was not contacted. The complainant suggested someone else; however, Mr. Jones was advised by Human Resources not to use that person because he was retired. He contacted Felton d’Entremont for the reference. Mr. Jones stated that Mr. d’Entremont told him that he had acted as supervisor in Barrington when the incumbent was away and was comfortable providing a reference. The complainant’s third reference was obtained from Bill Bagnell, C&P Supervisor, Burnside.

12Mr. Jones explained that copies of the completed reference questionnaires were provided to each board member. On June 18 or 19, 2007 Joan Reid, one of the board members, contacted Mr. Jones and asked for another reference for the complainant.

13Mr. Jones testified that he coordinated the informal discussions held in relation to this appointment process. The complainant’s informal discussion was conducted by Harvey Millar, the chairperson of the assessment board. Following the informal discussion, Mr. Millar told Mr. Jones that there may be a problem with some of the complainant’s reference information. Mr. Millar asked Mr. Jones to give the reference information to the complainant, and indicated that the complainant may want to respond to it. Mr. Jones testified that he subsequently received a package of documents from the complainant which he sent by facsimile to the board members.

14Mr. Jones testified that the appointment process continued during the conduct of informal discussions. Recommendations for the appointments were determined on June 21, 2007, when the initial assessments were completed. Mr. Jones explained that, further to the board’s review of the complainant’s references and the information the complainant provided, the board was directed to reassess its recommendations for each appointment, and to include the complainant in its deliberations. His recollection was that the board reassessed its recommendations on July 30, 2007.

15The complainant produced an email dated April 18, 2007 from a Human Resources Assistant informing him that “in addition to the references that you previously provided relevant to Initiative in the Workplace, reference checks will also be conducted with your Current Supervisor, Area Chief and Area Director.” According to information the complainant received from Human Resources following his complaint, these were not the people who provided his references.

16According to the complainant, Mr. Owen was not his acting supervisor when he provided a reference on May 25, 2007. He introduced two emails indicating that Kim Seto was acting supervisor on May 22 and May 28, 2007. The complainant stated that Ms. Seto should have provided a reference not Mr. Owen, whom he had only worked with in Parsboro for “a couple of days.”

17The complainant testified that his statement in a June 11, 2007 email to Mr. Jones, that “the supervisor in Burnside is only acting and may be bias (sic) to others in the competition” referred to Mr. Owen.

18The complainant stated that Mr. d’Entremont was his peer when he worked in Barrington.

19Following his elimination from the appointment process, the complainant had an informal discussion with Mr. Millar and received summaries of his references for interpersonal relationships and dependability. He stated that the summaries did not provide sufficient information for an informal discussion since he did not receive the actual reference notes nor was he told which referee had made which comments. The complainant prepared a response to the reference information and gave it to Mr. Jones.

20The complainant received his complete reference questionnaires at a meeting on September 6, 2007. He testified that he provided two references for the qualification initiative; neither of them was Mr. Owen. According to questionnaires, Mr. Owen provided input on the complainant’s initiative.

21The complainant stated that his rating of 80 for interpersonal relationships was lowered to 68 following the references. A handwritten notation on the Rating For GT-05 Conservation & Protection Field Supervisor DFO Simulation Exercise shows that his “partial score” of 80 was “pending reference checks.”

22The complainant attended a meeting in the fall of 2007 to discuss Mr. Owen’s reference and, as a result, Mr. Owen wrote a letter of apology to the complainant dated November 8, 2007.

23On July 31, 2007 the complainant was informed that the assessment board had reassessed two of his qualifications. His rating for interpersonal relationships was unchanged, but his rating for dependability was raised. As a result, the complainant was placed in the pool of qualified candidates.

24In an email dated August 14, 2007, Regis Verner, Human Resources, stated that the assessment board’s final recommendations for appointment were made on July 20, 2007. The complainant was not reassessed until July 30 or 31, 2007. According to the complainant, he did not have a fair chance because the appointment process continued, while his situation remained unresolved. He stated that the process should have been put on hold pending the review of his references.

25According to the complainant, the outcome of his reassessment might have been different if he had known, at the time, which referee had made which comments. In his view, finding the best qualified person is the purpose of an appointment process.

26Ms. Reid, Area Chief, C&P, Eastern Nova Scotia, was an assessment board member. She participated in assessing candidates’ references for interpersonal relationships and dependability. Ms. Reid explained that the completed reference questionnaires were provided to the assessment board members by Mr. Jones. The board met and assessed the references against an assessment guide containing specific elements related to the qualifications. The board also reviewed the references for each candidate to identify commonalities and major differences. Ms. Reid testified that the complainant’s references revealed some issues which resulted in a failing score for dependability.

27Mr. Millar convened a meeting of the assessment board by teleconference to review the information the complainant provided subsequent to his informal discussion. Based on the information the complainant provided, the board was satisfied that his score for dependability should be raised. Ms. Reid stated that the complainant’s assessment for interpersonal relationships was based on information that was common to all his references. The complainant did not provide new information that caused the board to change his score on that qualification.

28Ms. Reid testified that she had no doubts about the truthfulness of the references provided for the complainant. She stated that Mr. Owen’s later apology to the complainant was because he had provided second-hand information in his reference. She explained that the apology did not cause her to doubt Mr. Owen’s reference or her assessment since, in the initial assessment, she put very little weight, if any, on second-hand information. Ms. Reid also stated that she gave very little weight to reference information without detail or an example.

29Ms. Reid testified that she chose the criteria for deciding the right fit for appointment to the position in Truro. She introduced a Selection Criteria document which ranks the criteria – five essential qualifications and two asset qualifications, and includes a rationale for the choice of those criteria as the basis for determining right fit. Ms. Reid prepared the document for approval by the Area Director and the Director, C&P.

30Ms. Reid explained that the board initially looked at the top three criteria to determine if there was an obvious right fit among the qualified candidates. Then the remaining four criteria were checked to see if that person remained the right fit. The process for selection of right fit was conducted during the third week of June 2007; the same week the references were assessed.

31The complainant was not included in the first process for selection because he had failed to meet the dependability qualification. After the complainant was reassessed, the process for selection was re-done; however, the result did not change.

32As chairperson of the assessment board, Mr. Millar, Area Chief, C&P, South West Nova Scotia led the board’s assessments of references. He explained that each member had copies of the references and each one was read aloud. Members used an assessment guide to arrive individually at a global score for each qualification based on all of a candidate’s references. Discussion followed, during which each member explained the score they had given and the other members asked questions and sought examples. Mr. Millar stated that the board rejected second-hand information and relied on the referee’s own observations. Final reference scores were reached by consensus.

33Mr. Millar explained that two of the complainant’s original three references were quite negative; the third was neutral. Although one of the board members had personal knowledge of the complainant’s work, the board agreed that a fourth reference should be obtained. Jim McKinnon, a former supervisor, provided the complainant’s fourth reference.

34During the initial assessment, Mr. Millar considered whether Mr. Owen’s negativity reflected bias. As a result, he was cautious and careful to give his reference its due weight in the overall context of all the complainant’s references. He stated that “no great weight” was given to anything unsupported by an example. However, the references from Mr. Owen and Mr. Bagnell, while both negative, were also the most recent references for the complainant. Mr. d’Entremont and Mr. McKinnon provided less recent references.

35To prepare for informal discussion with the complainant, Mr. Millar reviewed all his references and the assessment guide. He had summaries of the complainant’s references prepared. He testified that he wanted the complainant to have information about the positive and negative information that was provided; however, he was advised by Human Resources not to identify the referees.

36When Mr. Millar met with the complainant for informal discussion he determined that the board needed to reassess the complainant’s reference scores for interpersonal relationships and dependability. He told the complainant that he would reconvene the assessment board and asked him to provide information for the board’s consideration.

37The assessment board met by teleconference on July 30, 2007 and followed the same process of individual scoring, discussion and consensus on a final score for the two qualifications.

38Mr. Millar testified that he learned later about the letter of apology from Mr. Owen, but it was after the board’s final deliberations on July 30, 2007. He stated that he had no concerns about the truthfulness of Mr. Owen’s reference and had never had the experience of dealing with a reference that he believed to be false or misleading.

39When the board determined that the complainant was qualified, it immediately re-did the process for selection of right fit for appointment to the Truro position. Mr. Millar explained that the qualified candidates’ scores for the top three selection criteria were added and the candidate with the highest total score was selected. The board arrived at the same decision as it had previously, and made its recommendation to the Area Director. Mr. Millar stated that the appointment process was completed on July 30, 2007.

Arguments of the parties

A) Complainant’s arguments

40The complainant argues that the appointment process was tainted by bad faith. He submits that the respondent relied on a reference that was biased. The complainant further submits that the respondent’s witnesses claimed to have given little or no weight to certain aspects of the references or Mr. Owen’s subsequent apology but, at the same time, stated there was no reason to doubt the references given.

41The complainant did not make arguments with respect to his allegation that the respondent did not fairly consider him in making its final decision on right fit for appointment.

B) Respondent’s arguments

42The respondent submits that there is no proof that any of the references were false, or should have been considered to be false, and, therefore, entirely discounted. The respondent argues that the assessment board had no reason to reconsider the complainant again further to Mr. Owen’s apology. The apology was for providing second-hand information, to which the board had already given little or no weight.

43The respondent argues that there was nothing improper about the initial process for selection of right fit in June 2007. The complainant raised new information in informal discussion which was seriously considered by the assessment board when it reassessed him. The respondent submits that there is no evidence that the board’s redetermination of right fit for appointment was improper.

C) Public Service Commission’s arguments

44 The Public Service Commission (the PSC) did not appear at the hearing. As it has done in previous complaints, the PSC provided written submissions on the concept of abuse of authority.

Analysis

Issue I: Did the respondent abuse its authority in assessing the complainant based on his references?

45There is no dispute that references were used in the assessment of two essential qualifications; namely, dependability and interpersonal relationships.

46The complainant drew the Tribunal’s attention to comments related to initiative that were recorded during Mr. Owen’s reference. According to the evidence, the essential qualification initiative was assessed based on an example or event described by the candidate, and verified by one or more references. Mr. Owen’s reference questionnaire shows that he verified the event described by the complainant to demonstrate initiative. Mr. Owen went on to comment that he felt that the event was a poor example of initiative.

47Mr. Millar was present at the complainant’s interview but did not participate in the follow-up with references. He testified that references were not used to assess initiative; only to confirm whether the event had occurred. He also stated that Mr. Owen’s comments related to initiative were not considered in the assessment of dependability or interpersonal relationships. This evidence is uncontested.

48The Tribunal is satisfied that references were used in the assessment of only two essential qualifications; namely, dependability and interpersonal relationships.

49The complainant submits that Mr. Owen was not his supervisor on the day he gave the reference and that Ms. Seto, who was acting Supervisor at the time, should have been asked to provide a reference.

50In Dionne v. Deputy Minister of National Defence et al., [2008] PSST 0011, the Tribunal commented on the use of reference checks as an assessment tool:

[50] Reference checks are a commonly used assessment tool, which provide information about a candidate’s past performance and accomplishments in order to assess their suitability for the position which is to be staffed. [...] While candidates can offer as referees those supervisors or co-workers who they believe will provide positive information, the purpose of conducting a reference check is to obtain accurate and relevant information about a candidate, whether positive or negative.

51A reference for the complainant was obtained from Mr. Owen on May 25, 2007. Based on the evidence, Ms. Seto was likely acting as the complainant’s supervisor on that date; however, no evidence was produced to establish the length of time Ms. Seto supervised the complainant. Mr. Jones testified that, had he known Ms. Seto was acting, he still would have sought the reference from Mr. Owen given that it was clear to him that Mr. Owen had supervised the complainant for a longer period of time.

52Mr. Owen’s reference questionnaire indicates that he worked with the complainant in Parsboro and Barrington. In his email communication with Mr. Jones on June 11, 2007, the complainant did not raise any doubt that Mr. Owen had sufficient knowledge of his work to provide a reference. He did raise precisely that issue concerning another person, and that person was not asked for a reference.

53The complainant stated that Mr. d’Entremont was his peer when he worked in Barrington. However, the respondent’s evidence is that Mr. d’Entremont had supervised the complainant on an acting basis and was comfortable providing a reference. According to Mr. Jones, the target of three references included acting supervisors. No evidence was brought before the Tribunal to refute this testimony.

54The evidence shows that the board based its assessment of the complainant on information they obtained from four references. Of the three references initially obtained for the complainant, the assessment board found that two of them were negative and the third was neutral. The board took the extra measure of obtaining a fourth reference.

55The Tribunal finds that the evidence does not establish that Mr. Owen, or any of the complainant’s references, had insufficient knowledge of his work to provide a reference or that it was unreasonable for the respondent to seek references from them.

56The complainant contends that his score for interpersonal relationships was lowered following reference checks.

57The evidence shows that the essential qualification interpersonal relationships was assessed using a combination of tools. The evidence shows that on March 23, 2007 the complainant’s partial score for interpersonal relationships was 80. That partial score was still subject to change since the assessment of interpersonal relationships was not complete in March 2007. Only once all the assessment tools had been applied was a final score awarded.

58Based on the evidence, the Tribunal finds that the assessment board used references to partially assess interpersonal relationships, and did not determine a final score for interpersonal relationships until it had completed its assessment of references in June 2007. According to the complainant’s Assessment overview, he received a final score of 68 for interpersonal relationships. The Tribunal finds that this score represents the final result of his complete assessment for this qualification. There is no evidence to support the complainant’s allegation that his score for interpersonal relationships was lowered.

59The complainant alleges that Mr. Owen demonstrated bias in the reference he provided, and that the assessment board should not have relied on the reference to assess him. In his June 11, 2007 email to Mr. Jones, he states that Mr. Owen’s bias may be “to others in the competition”. The complainant’s statement does not indicate that he believed, at that time, that Mr. Owen had any bias against him. The complainant did not provide any testimony regarding this alleged bias of Mr. Owen toward other candidates and no evidence was presented that Mr. Owen provided references for any other candidates.

60Ms. Reid and Mr. Millar both described how candidates’ references were assessed in this appointment process. Each reference was read aloud and each board member had copies of the completed questionnaires and the assessment guide. Members scored the candidates individually and then questioned one another and checked for examples in the references. Final scores were reached by consensus. This evidence is uncontested.

61Ms. Reid and Mr. Millar both testified that they relied on the referees’ own observations and not on second-hand information contained in the references. They gave more weight to information that was supported by specific examples or was common among the references provided.

62Ms. Reid answered several questions about specific comments in Mr. Owen’s reference questionnaire, identifying some as second-hand or uncorroborated, and having received no weight in her assessment. She identified other comments as consistent with those in other references; they were therefore given more weight. Her recall was not perfect, and she explained that it was difficult to go over the details of the assessment so long after the process. However, her testimony was consistent with that of Mr. Millar in terms of the assessment board’s approach to using the references as a tool for assessment.

63The complainant’s four reference questionnaires, as well as information the complainant provided to the assessment board following informal discussion, was entered into evidence. More than one of the references contained information and specific examples that can be characterized as negative.

64Mr. Owen’s reference questionnaire is particularly negative and the complainant submits that it demonstrates bias. Mr. Owen subsequently wrote a letter to the complainant apologizing for “using unverified second party information in relation to the reference I provided for you as a candidate in the Truro C & P Field Supervisor competition”. Mr. Owen’s apology does not indicate that the information he provided was incorrect; it only confirms that it was second-hand information. This is something the assessment board had identified and dealt with when it conducted its assessment of the complainant.

65After informal discussion, the complainant provided a rebuttal to some information and justification for his actions in some instances. The information provided by the referees, and Mr. Owen in particular, was not shown to be untruthful; the complainant had an explanation or a different opinion of some of the information in the references.

66When the assessment board reconvened by teleconference on July 30, 2007, it followed the same process to reassess the complainant’s dependability and interpersonal relationships. The board did not entirely discount any of the complainant’s references, but the additional information provided by the complainant was also considered. As a result, the board awarded the complainant a passing score for dependability.

67The respondent’s evidence is that the complainant was awarded a passing score of 68 for interpersonal relationships in June 2007. The information the complainant provided following informal discussion did not change the board’s assessment of that qualification. There is no evidence to refute this.

68The complainant’s statement that Mr. Owen’s bias may be “to others” raises the suggestion of personal favouritism. However, there is no evidence before the Tribunal to substantiate a finding that Mr. Owen was either biased against the complainant or showed any personal favouritism toward other candidates. Therefore, there is no basis for finding that the assessment board should have discarded the entire reference.

69The Tribunal finds that the complainant has not established on a balance of probabilities that the respondent abused its authority in assessing the complainant based on his references.

Issue II: Did the respondent abuse its authority by failing to fairly consider the complainant?

70The complainant alleges that the assessment board could not have really considered him for appointment as a decision had already been made prior to his reassessment. He stated that this is an issue of “procedural fairness.”

71Ms. Reid described the process for selection of right fit (selection process) based on five of the essential qualifications and two of the asset qualifications (selection criteria). According to the respondent’s witnesses, the selection process was conducted in late June 2007 and again on July 30, 2007, after the complainant’s informal discussion and reassessment.

72Sections 47 and 48 of the PSEA are relevant:

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.

48.(1) After the assessment of candidates is completed in an internal appointment process, the Commission shall, in any manner that it determines, inform the following persons of the name of the person being considered for each appointment:

(...)

(2) For the purposes of internal appointment processes, the Commission shall fix a period, beginning when the persons are informed under subsection (1), during which appointments or proposals for appointment may not be made.

(3) Following the period referred to in subsection (2), the Commission may appoint a person or propose a person for appointment, whether or not that person is the one previously considered, and the Commission shall so inform the persons who were advised under subsection (1).

(emphasis added)

73 Section 48 of the PSEA sets out a requirement for two notifications concerning appointments. When sections 47 and 48 are read together, it is clear that the first notice – Notification of Consideration for Appointment – effectively signals the last stage of an appointment process when persons are informed that they are eliminated because they are not being considered for appointment. Subsection 48(2) prohibits appointments during a fixed period of time which, if considered in the context of section 47, allows for informal discussion for those persons eliminated from consideration at this stage of the process.

74After the fixed period of time, a second notice – Notification of Appointment or Proposal for Appointment – is issued naming the person who has been appointed or is proposed for appointment.

75By using the words “whether or not that person is the one previously considered” in subsection 48(3) of the PSEA, Parliament clearly indicated that informal discussion could result in someone, who was originally considered, not being appointed or proposed for appointment. As well, someone who was not initially considered may be proposed or appointed. Parliament also intended that delegates would, when appropriate, fairly and objectively reconsider their appointment decisions following informal discussion.

76The PSC has exercised its authority under subsection 48(2) to establish the fixed period by issuing a Policy on Notifications which requires that deputy heads establish a fixed “waiting period” between the first and second notices of at least five days.

77There is no doubt that a selection for appointment was made by the assessment board by June 21, 2007, before the complainant had an informal discussion and was reassessed. As explained, this is specifically permitted under sections 47 and 48 of the PSEA.

78The complainant was informed that he had failed to qualify for appointment. The complainant had an informal discussion concerning his elimination from the process and provided information for the assessment board. In Rozka et al. v. Deputy Minister of Citizenship and Immigration Canada et al., [2007] PSST 0046, at paragraph 76, the Tribunal held that informal discussion is not an opportunity for a candidate to request a reassessment. However, an assessment board may determine that information arising from informal discussion warrants consideration, as it did in this case.

79The complainant was reassessed and found qualified on July 30, 2007. The Notification of Appointment or Proposal for Appointment, whichwas filed with the complaint, is dated August 23, 2007. This is clearly after the complainant’s informal discussion and reassessment.

80The complainant’s position is that an appointment process should come to a stop when a candidate is eliminated, and should only proceed once any dispute over the elimination is resolved. However, this position is not supported by the relevant provisions of the PSEA.

81Nevertheless, in this case, the final decision on selection for appointment was not issued until two months following the initial decision. During that period, the assessment board reconvened and reassessed the complainant. The Tribunal finds that the assessment board acted diligently and in good faith in its decision to reassess the complainant following informal discussion.

82The Tribunal finds that, in this case, the two notifications and informal discussion operated as intended. There is no evidence that the assessment board failed to redo the selection process to include the complainant once he was found qualified. Similarly, there is no evidence that the board failed to properly consider the complainant when it conducted the second selection process.

83The complainant did not raise any arguments, or provide any supporting evidence that the selection criteria or the selection process itself was flawed. The uncontested evidence is that five essential qualifications and two asset qualifications were used as selection criteria. Each of the top three criteria was weighted evenly, and the candidate with the highest combined score was selected as the right fit for appointment. The scores for the other four selection criteria were reviewed to confirm the initial selection. The Tribunal finds that this selection was based on ranking.

84The Tribunal held in Visca v. Deputy Minister of Justice et al., [2007] PSST 0024, that, while the practice of ranking candidates does not reflect the spirit of the PSEA, a manager is not precluded from doing so. However, when ranking is used to select candidates for appointment, the Tribunal will examine its application to determine whether there was an abuse of authority.

85Dependability and interpersonal relationships were two of the top three qualifications used as selection criteria. The complainant stated that the outcome might have been different if he had known who had provided his references at the time of his informal discussion.

86The Tribunal is satisfied that, at the time of his informal discussion, the complainant was provided the reference information that was used by the board to assess him. He was not given the referees’ names at that time; however, the information was sufficient to understand his assessment and to respond. The Tribunal is also satisfied that the complainant knew on June 11, 2007 that Mr. Owen had provided a reference.

87In preparation for this hearing, the complainant was given the completed reference questionnaires for all four of his references. He did not provide any evidence or arguments, based on these documents, which undermines the board’s final assessment of him for the qualifications of dependability or interpersonal relationships. There is no evidence of more, or different, information that he would have provided in response to the reference information.

88Based on the findings set out above, the Tribunal concludes that the complainant has not established that the respondent failed to fairly consider him. Therefore, this allegation of abuse of authority cannot be substantiated.

Decision

89For all these reasons, the complaint is dismissed.

Merri Beattie

Member

Parties of Record

Tribunal File:

2007-0440

Style of Cause:

Dale Richards and the Deputy Minister of Fisheries and Oceans et al.

Hearing:

September 9-10, 2008
Halifax, NS

Date of Reasons:

September 29, 2009

Appearances:

For the complainants:

Anne Little

For the respondent:

Neil McGraw