FPSLREB Decisions

Reasons for Decision

Introduction

1 Lawrence McKeown, the complainant, was a Senior Research Analyst, at the ES-05 group and level, in the Science, Innovation and Electronic Information Division of Statistics Canada at the time of the appointment process. He filed a complaint against the respondent and alleged abuse of authority in the screening and interview process for a Chief Specialist position at the ES-06 group and level.

2 The respondent denies that there was any abuse of authority and submits that the complainant was reintegrated into the appointment process after having been screened out. Furthermore, the complainant could not be appointed to this position as he did not meet the essential qualifications of the position.

Background

3 On June 11, 2008, Statistics Canada initiated an advertised internal appointment process for a Chief Specialist position at the ES-06 group and level in the Micro‑Economic Analysis Division (MEAD). In the Job Opportunity Advertisement, candidates were instructed to submit a print copy of at least one published economics paper of significance.

4 Eight people applied, including the complainant. The assessment process included a review of the candidates’ applications, an oral interview and reference checks. On July 21, 2008, the complainant was advised that he had been screened out of the appointment process because he did not meet two of the screening criteria: a) recent and significant experience applying social or economic theory to the analysis of statistical data, and b) recent and significant experience publishing research findings from at least two economics articles in a recognized peer reviewed academic social science journal, Statistics Canada journal or similar professional publication.

5 The complainant sought more information on the decision to screen him out, and the chairperson of the assessment board left him a voicemail on August 1, 2008. The complainant responded ten days later, on August 11, 2008.

6 On August 12, 2008, at 9:27 a.m., the complainant was emailed a Notice of Consideration regarding the appointment of Mark Brown and Guy Gellatly to Chief Specialist positions. He contacted the human resources representative to find out why this notice was issued when he had disputed his elimination from the process. Less than four hours later, the respondent sent an email to the complainant stating that the assessment board had determined that he had met the screening criteria and invited him to an interview. The complainant was interviewed on August 22, 2008 and, on August 25, 2008, he was notified that he failed the interview as he did not obtain the required pass mark.

7 On August 26, 2008, a new Notice of Consideration regarding the appointment of Mr. Brown and Mr. Gellatly was emailed to the complainant. On September 2, 2008, a Notification of Appointment or Proposed Appointment of Mr. Brown and Mr. Gellatly to Chief Specialist positions was emailed to the complainant. The complainant filed his complaint with the Public Service Staffing Tribunal (the Tribunal) on September 12, 2008 pursuant to section 77(1)(a) of the Public Service Employment Act, S.C. 2003,c. 22, ss. 12, 13 (the PSEA).

Issues

8 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority by improperly screening the complainant out of the appointment process?
2. Did the respondent abuse its authority in the interview process?
3. Was there a reasonable apprehension of bias in the appointment process?

Summary of Relevant Evidence

Evidence related to the screening process and informal discussion

9 The complainant submitted a number of documents showing that he had made presentations at Canadian and international conferences, and that he authored a number of technical publications.

10 When he applied for the Chief Specialist position, he believed that he met the screening criteria, although the criteria appeared tailored for others. He also testified that he thought he would be screened in, but he was not optimistic about his chance of success in the process because of his past experience in other appointment processes. He thought that he had only a five percent chance of being appointed. He filed his complaint to find out how the appointment process worked because, in his opinion, it lacked transparency.

11 The complainant testified that he received an email on July 21, 2008, informing him that he had been screened out of the appointment process because he did not meet two essential merit criteria. The email invited him to contact John Baldwin, the chairperson of the assessment board, if he wished to have an informal discussion concerning the board’s decision.

12On July 24, 2008, the complainant sent an email to Muriel Ngombo, Human Resources Advisor, with a copy to Mr. Baldwin, requesting an informal discussion. He sent a second email to Ms. Ngombo on August 1, 2008, indicating that he had not had a reply to his request.

13 Mr. Baldwin left the complainant a voicemail on August 1, 2008 that explained why he did not meet the two screening criteria. The complainant stated that Mr. Baldwin also commented on a paper that the complainant had not submitted with his application.

14 On August 11, 2008, the complainant sent an email to Mr. Baldwin stating that Mr. Baldwin had not mentioned all five of the papers submitted and that he had mentioned a paper that the complainant had not submitted. He described two of the studies Mr. Baldwin had not mentioned and stated that it was not clear to him which study was linked to which assessment criteria.

15 In an email dated August 12, 2008, the complainant received a Notice of Consideration regarding the appointmentof Mr. Brown and Mr. Gellatly to Chief Specialist positions. He wrote to Ms. Ngombo the same morning and asked how the appointment process could proceed when he was challenging the decision to screen him out. Later that day, the complainant received an email from Ms. Ngombo stating that the assessment board had determined that he met the screening criteria for the Chief Specialist position and that he was invited to an interview.

16 Mr. Baldwin was called to testify by the respondent. As the Director of MEAD at the time of the appointment process, he was responsible for the research program, staffing positions and day-to-day operations. He testified that the Chief Specialist appointment process was part of a succession planning exercise related to impending retirements. He stated that it is a senior position requiring knowledge of advanced statistics, economic modelling and advanced technology. It also requires the ability to formulate research programs and to make presentations on sensitive matters to varying audiences, including parliamentary committees. Mr. Baldwin stated that about one-half to two-thirds of his directorate’s output is analysis and that these positions demand an unusually high level of analytical ability.

17 Mr. Baldwin stated that he developed the Statement of Merit Criteria (SMC) for the position along with Mr. Gu, who was the other assessment board member. Experience was assessed through a covering letter and accompanying background papers. Abilities and knowledge were assessed through an oral interview. Personal suitability was assessed through references. He also stated that the complainant was screened into the appointment process and invited to an interview. According to Mr. Baldwin, he did not know the complainant well before this appointment process, having only met him casually. He thought he might have once chaired a panel that included the complainant.

18 When asked how he could have missed three of the complainant’s papers during the screening process, Mr. Baldwin stated that all of the papers were sent to the board members to assess the experience qualifications. He could not remember if he reviewed all of the papers, but believes that if he did not review them all, he reviewed those that he considered demonstrated recent and significant experience in economics. He either missed the other three papers or he did not think they were significant.

19Mr. Baldwin testified that Human Resources suggested he reassess the complainant’s documentation. This led to the decision to screen the complainant into the appointment process.

Evidence related to the complainant’s assessment

20 The complainant testified about his dissatisfaction with the interview process. He said that his interview was scheduled for 1:00 p.m. on August 22, 2008. He arrived at the interview room at 12:50 to set up his PowerPoint presentation and he discovered Mr. Baldwin eating lunch and chatting with Mr. Brown and Mr. Gellatly. He found the situation awkward because he had seen the Notice of Consideration with the names ofthese two individuals before he was screened into the process.

21 The complainant stated that during his presentation, Mr. Baldwin was focused on completing his assessment template rather than watching the presentation and that he only glanced at about 20 percent of his 30 slides. This surprised the complainant, as the presentation had not been provided in advance.

22 The complainant said that he recognized that his current position focuses on measurement, and the Chief Specialist position focuses on policy. Because of this, he had hoped that the assessment board would ask him questions about policy at the end of his presentation. He said that the board members asked a couple of technical questions, and that Mr. Baldwin then said that he had completed all of the boxes on his assessment template and asked Mr. Gu if he had any further questions. Mr. Gu did not. The complainant said that this apparently signalled an end to the interview, although neither member of the board said anything to him to this effect. He also said that no one thanked him for his presentation.

23 The complainant testified that the angle and location of the words in Mr. Gu’s interview notes led him to believe that some words were added to Mr. Gu’s assessment form after the interview. With respect to A3, the ability to effectively communicate, he suggests that the word “somewhat” was inserted between the words “communicates effectively” after the interview. He also stated that Mr. Gu’s comment on A3: “No outline, no plan, not coherent” was incorrect, as he provided an outline of his talk on his second slide.

24 According to the complainant, this shows that Mr. Gu initially thought that he met the merit criteria for effective communication and then changed his notes to show that he did not. The complainant noted that he only obtained a score of 12 out of 20 on this question, while the successful candidates were awarded 20 out of 20. With respect to A4, the ability to effectively present research results, the complainant suggests that the word “doesn’t” on Mr. Gu’s notes was inserted between “He” and “present relevant results effectively” after the interview.

25 The complainant expressed the view that the board members paid little attention to his slides and may have missed some of them. When he compared his scores to those of the successful candidates, it seemed to him that the board had made a deliberate attempt to lower his scores.

26 The complainant testified that if the board had included someone who was familiar with his work, it might have resulted in more consistency in the assessment. The two successful candidates submitted papers that were co-authored with the board members and were based on their work in MEAD. In his view, the board members were assessing their own research, and this raises questions of objectivity.

27 The complainant said that he assumes the other candidates received the same instructions as he did to submit a recently published paper. The paper submitted by Mr. Gellatly, and co-authored by Mr. Baldwin, was dated 2000. In his view, this was not a recently published paper.

28 Paula Thompson was called to testify by the complainant. She is the Director of the Business Special Surveys and Technology Statistics Division, formerly known as the Science, Innovation and Electronic Information Division. She has a Masters of Arts in economics, previous experience in two policy departments, and has worked at Statistics Canada since 1997. She stated that her division conducts special surveys and described its work as policy neutral. Her division does not perform analysis and policy work.

29 Ms. Thompson described the complainant as highly qualified and a scarce resource. She testified that he is excellent at planning, analysing and disseminating results. He has excellent communications skills and has demonstrated a smooth command of his subject matter. She received many positive comments from a presentation he gave at a socioeconomic conference in May 2009.

30 Ms. Thompson acknowledged that she had no involvement in the appointment process for the Chief Specialist position, nor was she present for the complainant’s presentation. She also acknowledged that there is no link between her division and MEAD.

31 Mr. Baldwin acknowledged that it was awkward when the complainant arrived to find the other two candidates in the interview room. Mr. Baldwin explained that his research group is small, constituting 7-10 researchers, and they meet daily for lunch to discuss papers and other matters in the room that was used for the interview. They were just finishing and the others were about to leave when the complainant arrived early for his interview. Mr. Baldwin wanted one of the candidates to remain to assist in case they encountered any problems with the PowerPoint set-up because of his lack of skill with this technology. He also acknowledged that he normally thanks candidates for their presentation at the end of an interview.

32 Mr. Baldwin testified that for a senior level position, abilities are best judged by the way candidates express themselves in an oral interview. He said that the presentation provided candidates with an opportunity to demonstrate their depth and breadth of understanding, and the ability to integrate information, as required by the position. The board wanted a recently published paper because for a senior position it did not want candidates submitting something they wrote in university.

33 Mr. Baldwin said that the complainant did not perform very well in the interview. He testified that he did not pass any of the competencies being assessed. He noted that the board’s assessment does not mean that the complainant does not possess these essential abilities but that he did not demonstrate them at the level required for a position in MEAD.

34 According to Mr. Baldwin, during the interview he was evaluating the extent to which the material presented was coherent and cogent. He listened to every word and was looking for the skills required for the position. He agreed that if the complainant did not mention the content of slides 27 and 28 of his presentation, he might have missed that information.

35 Mr. Baldwin stated that he and Mr. Gu discussed and decided on the assessment results for all candidates. The board wanted to complete the appointment process within a reasonable period of time because it was part of the succession planning exercise. He denied that he considered the complainant an impediment to completing the process.

Arguments of the parties

A) Complainant’s arguments

36 The complainant argues that there has been an abuse of authority in the screening and interview processes. He submits that under the Public Service Commission’s Appointment Policy appointments under the PSEA must meet the core values of fairness, transparency, access and representativeness. The complainant submits that it is not necessary for the Tribunal to find intention to establish bad faith. It is sufficient to find serious carelessness. He argues that the errors, omissions, and inconsistencies in this case reflect unfairness, improper conduct and bad faith. He refers to Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at para. 70 (Tibbs), and Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0024 at paras. 91-92 (Robert and Sabourin), in support of these principles. He also highlighted specific issues with regard to his initial elimination from the appointment process, the informal discussion and Notice of Consideration, problems during the assessment, and bias. These are summarized below.

a) Initial elimination from the appointment process

37 The complainant argues that the respondent only considered two of the five papers he submitted with his application and that Mr. Baldwin mentioned in his voicemail a paper he did not submit. Therefore he believes that the assessment board acted on irrelevant considerations leading to an improper result, namely, the initial decision to screen him out of the appointment process.

b) Informal Discussion and Notice of Consideration

38 The complainant argues that the informal discussion that he requested never took place and that the voicemail left by Mr. Baldwin on August 1, 2008, does not constitute an informal discussion. The complainant also argues that the respondentacted improperly when it issued a Notice of Consideration regarding the appointmentof Mr. Brown and Mr. Gellatly on August 12, 2008, which was the same date he was invited to an interview for the position. He argues that the PSC’s Notification Policy requires that all candidates be assessed before such a notice may be issued. He also argues that the respondent’s characterization of the Notice as an administrative error is an invention to mask the fact that the appointees were determined before he was interviewed.

c) Specific problems regarding the interview

39 The complainant submits that, by the time he was screened back into the process, the two successful candidates had already been selected and the board was simply going through the motions. Although he believes that it was unintentional that Mr. Brown and Mr. Gellatly were in the interview room when he arrived, he argues that it was careless.

40He also submitted that it was improper for Mr. Baldwin to end the interview without thanking him for his presentation. He states that it was careless for Mr. Gu to say that his presentation did not have an outline when one was included in slide 2 and for Mr. Baldwinto miss slides 27 and 28. Furthermore, he submits that he was not properly assessed on A1. The complainant stated that he was only given 18 out of 30 points for A1, the ability to initiate, plan, develop and conduct a large volume of analytical studies. The complainant submits that he would not have failed to mention slides 27 and 28, which itemized ten studies that he had planned, initiated or conducted. Therefore, Mr. Baldwin’s claim that he listened to every word of the presentation but may have missed the content of slides 27 and 28 is not credible.

41 The complainant also raised concerns about Mr. Gu’s notes. He referred to A1 and stated that Mr. Gu had written that the complainant had “…conducted a large number of studies…” The complainant noted that Mr. Gu made similar comments on his notes about Mr. Gellatly who obtained a score of 30 out of 30 on A1. Furthermore, Ms. Thompson testified about the complainant’s ability to plan a large number of studies.

42 He also argues that it appears certain that words were inserted into Mr. Gu’s notes after the interview in a deliberate effort to make his notes consistent with the numerical rating of his interview.

d) The treatment of the papers used for the presentation at the interview

43 The complainant submits that the assessment of his interview was inaccurate and punitive. He notes that the papers submitted by the successful candidates were co‑authored with the members of the assessment board. The PSC’s Assessment Policy, on page 1, states that assessment processes and methods are to be objective. The complainant asks how a board member can objectively assess his own research.

44 He also alleges that he was treated differently from Mr. Gellatly regarding the paper that formed the basis for his interview. Both were asked to prepare a presentation on an economic paper of significance that had recently been published. Mr. Gellatly’s presentation was based on a paper published in 2000.

45 The complainant cites the PSC’s Guidance Series – Assessment, Selection and Appointment, at page 9, which advises managers to ensure that appointment decisions are free from bias or the appearance of bias. He submits that Mr. Baldwin recently promoted Mr. Gu and one of the positions being staffed was Mr. Gu’s former position. He argues that a reasonable person would not find that an assessment board was objective if it included a board member who had recently been promoted by the other board member, and if theboard reviewed co-authored papers.

46 The complainant cites Tibbs, at para. 65, and acknowledges that a finding of abuse of authority requires more than errors, omissions and improper conduct. In his view, failing to arrange an informal discussion and altering text on an assessment form are examples of serious misconduct.

B) Respondent’s arguments

47 The respondent argues that there is no improper conduct amounting to abuse of authority. It cites Tibbs, paras. 65 and 66, and Portree v. Deputy Head of Service Canada, 2006 PSST 0014 at paras. 43 and 45-51, to argue that the threshold for a finding of abuse of authority is high and that complaints of abuse of authority are not intended as a ”catch all” recourse for complainants who are not satisfied with the results of an appointment process.

48 The respondent refers to the complainant’s criticisms of the assessment and argues that it is not the Tribunal’s role to redo the appointment process. It cites Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020 at para. 54, in support of this principle. The respondent also refers to Visca v. Deputy Minister of Justice,2007 PSST 0024 at paras.42-51,to argue that managers have broad discretion to establish necessary qualifications for a position and to choose the person who meets those qualifications.

49 It argues that the complainant’s allegations are based on personal impressions, circumstantial events and his own ideas regarding how the process should have been conducted. He has not provided evidence that the choice and application of the assessment method led to an unfair result or was unreasonable. Trachy v. Deputy Minister of Transport, Infrastructure and Communities,2008 PSST 0002 at paras. 43‑45, and Oddie v. Deputy Minister of National Defence, 2007 PSST 0030 at paras. 89-92, were cited in support of this argument. The respondent also reviewed the specific issues raised by the complainant as summarized below.

a) Initial elimination from the process

50 The respondent noted Mr. Baldwin’s testimony that he probably read two of the complainant’s papers that appeared relevant to him, but after the complainant expressed concerns he reconsidered the other papers and screened the complainant into the appointment process. The respondent argues, therefore, that the complainant’s initial elimination from the process cannot be considered serious carelessness.

b) Informal Discussion and Notice of Consideration

51 The respondent submits that informal discussion is not an obligation and the PSC’s Guides are guidelines only. Since the complainant was screened into the appointment process, the complainant’s concerns about informal discussion before he was screened in are not relevant. In any case, the respondent argues that because the complainant was screened into the appointment process, it makes no sense to say that there was abuse of authority in any of the events that occurred prior to the time that the complainant was screened in. The respondent notes that when the complainant was eventually eliminated from the appointment process he never requested an informal discussion.

c) Specific problems during the assessment

52 The respondent acknowledges that the situation was awkward when the complainant arrived at the interview room but that even if this was improper conduct, it was not significant. It submits that the fact that the complainant did not like how the interview ended does not constitute abuse of authority.

53 Mr. Baldwin acknowledged that he may have missed some of the complainant’s slides due to his note-taking and that, if the slides were not integrated into the complainant’s presentation, then he would have missed them. However, there is no evidence that Mr. Gu missed any slides. Therefore, there is no evidence of improper conduct.

54 The respondent argues that the complainant’s interpretation of the board members’ notes is merely speculation. It argues that while the complainant does not agree with his assessment, this is not evidence of wrongdoing. The respondent disputes the allegation made by the complainant that Mr. Baldwin instructed or convinced Mr. Gu to alter his interview notes. Mr. Baldwin testified that he did have a discussion with Mr. Gu, but that he did not ask Mr. Gu to change anything.

55 The respondent submits that it was appropriate to have persons who are knowledgeable about the work conduct the assessment. It argues that MEAD is very different from the complainant’s current division and both the complainant and his witness, Ms. Thompson, agreed on this. While it acknowledges that the complainant is competent in his current position, the respondent argues that this does not mean he is qualified to work in MEAD. The respondent points to Mr. Baldwin’s testimony that the assessment board was looking for a very senior and specialized candidate and that Mr. Baldwin explained respectfully that the complainant did not possess the required competencies. The position at issue is an ES-06 and the complainant is an ES-05 and he did not perform well on the day of the interview. The respondent notes that there is no dispute over the qualifications of the candidates who were appointed.

d) The treatment of the papers used for the presentation at the interview

56 Regarding the assessment board’s desire for a presentation based on a recently published paper, the respondent referred to Mr. Baldwin’s testimony that for a senior position he did not want candidates submitting a paper that they wrote in university. The respondent notes that the SMC for the position states that recent experience is “normally defined as at least four (4) years over the past seven (7) years.” The use of the word “normally” means that there is flexibility. The respondent argues that the fact that Mr. Gellatly’s paper was eight years old as compared to seven years old is not significant given this flexibility. The respondent argues that the complainant was not prejudiced by this decision and it does not agree that the other candidate had an advantage because his older paper was accepted. The respondent suggests that the complainant would have had a stronger argument if he had submitted a paper from the year 2000 and it had been rejected.

57 The respondent submits that the assessment board can make an objective assessment in situations where candidates’ papers were co-authored with members of the assessment board. The board was assessing the presentation, not the paper. The respondent argues that these candidates, in fact, could have suffered a disadvantage because the board was familiar with the content of their papers.

58 The respondent submits that the complainant’s arguments suggest personal favouritism, although this was not one of the complainant’s allegations. The respondent cited Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007 at paras. 44-46, Morris v. Commissioner of Correctional Service of Canada, 2009 PSST 0009 at paras. 102-105 and 110, and Jacobson v. Chairperson of the Immigration and Refugee Board, 2009 PSST 0019 at paras. 51-52 and 68-71, in support of its argument that there was no personal favouritism or bias. It argues that while circumstantial evidence can support findings of personal favouritism or bias, what has been presented falls short of what is required.

59 Finally, the respondent states that the entire appointment process was conducted in three months. It was very efficient. There was nothing wrong with the assessment board making a quick decision after it interviewed the complainant.

C) Public Service Commission’s arguments

60 The Public Service Commission (PSC) submits that informal discussions are not mandatory under section 47 of the PSEA. It is under the PSC’s Informal Discussion Policy and its accompanying Guide that informal discussions are mandatory, and that there are no set rules or format. The PSC submits that an informal discussion may have taken place before the complainant was screened back into the appointment process. There is evidence that some sort of informal discussion was underway. There is a voicemail from Mr. Baldwin to the complainant regarding his elimination from the process. There is also the complainant’s email of August 11, 2008 to Mr. Baldwin where he says he is not clear as to the manner in which his studies were linked to the experience criteria.

61 The PSC submits that one of the purposes of informal discussion is to correct errors or oversights in the appointment process. The PSC believes that any errors or oversights with respect to the complainant were corrected when he was screened in. At that point, the complainant was no longer entitled to an informal discussion under the PSC Policy because he was no longer a person eliminated from consideration for appointment.

62 The PSC states that the Notice of Consideration that was issued for Mr. Brown and Mr. Gellatly on August 12, 2008 was not in error when it was issued. It was later that day that the complainant was informed that he had been screened into the appointment process.

D) Respondent’s reply

63 The respondent submits that while it supports the arguments of the PSC, it notes that the PSC’s Guide to Implementing the Informal Discussion Policy and its Guidance Series – Participating in Informal Discussion documents are guides only and do not establish that informal discussion is mandatory.

E) Complainant’s reply

64 In reply, the complainant submits that he never alleged personal favouritism. Furthermore, he believes that the two successful candidates are probably the best fit for the position.

65 The complainant accepts Mr. Baldwin’s testimony that he did not instruct Mr. Gu to alter his interview notes. However, he argues that changes were obviously made to Mr. Gu’s notes so they would concur with the rating he received on A3 and A4.

66 While the complainant agrees with the PSC that section 4.1 of its Guidance Series on informal discussions states that the manager determines the method of informal discussion, he argues that section 4.4 of the same document provides that managers are expected to contact the person concerned and discuss with them the preferable method. He argues there was no such discussion in this case.

Analysis

Overview

67 The Tribunal must establish whether there has been an abuse of authority within the meaning of section 77(1)(a) of the PSEA. The complainant has the burden to prove, on a balance of probabilities, that there was abuse of authority in the appointment process (Tibbs, at paras. 49 and 55).

68 The complainant has argued that the events that he has described constitute abuse of authority. The first series of events relate to his initial elimination from the appointment process. The second series of events relate to the interview and assessment that followed his reintegration into the process.The complainant has also argued that a number of serious errors and omissions, when taken as a whole, may be sufficient to substantiate a complainant of abuse of authority (Robert and Sabourin).

69 The Tribunal has carefully reviewed the complainant’s allegations of abuse of authority and all of the evidence presented at the hearing. The Tribunal has individually considered each of the events that were raised by the complainant in the screening process and in the interview process. It has also considered them in their entirety and it does not find that the respondent predetermined the result of the appointment process or committed errors that amount to abuse of authority in the appointment process.

Issue I: Did the respondent abuse its authority by improperly screening the complainant out of the appointment process?

70 The Tribunal will analyse the following events pertaining to the initial screening of the complainant’s candidacy: the failure to consider the academic papers the complainant submitted with his application; the request for informal discussion and how it was handled; and the issuance of the Notice of Consideration on the same day that the complainant was screened into the appointment process.

a) The failure to consider the academic papers the complainant submitted with his application

71 The respondent does not dispute the allegation that it failed to refer to all of the published economics papers that were submitted with the complainant’s application. Mr. Baldwin testified that he read all of the papers provided to the board and assessed them against the SMC. The screening form only mentions two of the complainant’s papers. Mr. Baldwin could not recall how he missed the other three papers, but testified that he may not have considered them “significant.” The complainant testified that Mr. Baldwin commented on a paper he had not submitted, but he did not question Mr. Baldwin about why he mentioned this paper.

72 The Tribunal finds that the respondent’s explanation for Mr. Baldwin’s oversight is reasonable. If the assessment board found that some of the complainant’s papers were not significant, then it would have been appropriate to exclude them from consideration during the screening process. This is consistent with the fact that the Job Opportunity Advertisement stated that the respondent wanted an economics paper of “significance.”

73 In addition, this omission was acknowledged by Mr. Baldwin and the board screened the complainant back into the process after it determined that one or more papers were significant. The complainant has not proven that this omission, having been corrected, amounts to an abuse of authority.

b) The request for informal discussion and how it was handled

74 There is no explicit requirement in the PSEA to provide an employee with an informal discussion. Nevertheless, section 16 of the PSEA provides that deputy heads are subject to any policies established by the PSC. The PSC’s policy on Informal Discussion states that “…persons eliminated from consideration are provided with an opportunity to discuss the decision to eliminate them, as soon as possible after the decision is made.”

75 The Tribunal addressed the purpose of informal discussions in Rozka v. Deputy Minister of Citizenship and Immigration Canada, 2007 PSST 0046 at para. 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 that an error has been made, this provides the opportunity for the manager to correct that mistake. According to the Informal Discussion policy, this allows for appointments to be made without delay.

76 The email from Ms. Ngombo dated July 21, 2008, informing the complainant that he was eliminated from the appointment process, also offered him an opportunity to contact Mr. Baldwin for an informal discussion. The complainant sent an email back to Ms. Ngombo asking her to explain why his publications did not meet the screening criteria. Ms. Ngombo replied that she was not qualified to provide the requested explanation and again referred the complainant to contact Mr. Baldwin directly. On July 24, 2008, the complainant replied to this email, with a copy to Mr. Baldwin, asking Ms. Ngombo to arrange the informal discussion. A week later, on August 1, 2008, the complainant sent another email to Ms. Ngombo saying he had not had a response to his request. There is no explanation as to what happened during the intervening week. It is not clear whether Ms. Ngombo assumed Mr. Baldwin would respond to the request or whether Mr. Baldwin was waiting for Ms. Ngombo to arrange the discussion as requested by the complainant. Nevertheless, when the complainant expressed concern that no one had gotten back to him, Mr. Baldwin telephoned him on that same day. When the complainant did not answer, he left a voicemail explaining the board’s screening decision. It was not until ten days later, August 11, 2008, that the complainant responded to the voicemail from Mr. Baldwin and questioned his conclusions. The complainant did not specifically ask for further discussion, but he did state that he was still not clear on why he failed to meet the two screening criteria.

77The Tribunal cannot agree with the complainant’s view that the manner in which his request for informal discussion was handled amounts to an abuse of authority. There was a gap between his request and the response from the respondent. It is not clear that Mr. Baldwin is responsible for that gap. Furthermore, Mr. Baldwin did contact the complainant by voice mail within a day of the complainant’s follow up email to Ms. Ngombo. The communication that took place led to the manager addressing an omission and screening the complainant into the appointment process.

78 The Tribunal finds that attempts were made by both parties to engage in an informal discussion. These attempts stopped after the complainant was screened back into the appointment process. The Tribunal also finds that the communication between the complainant and the representatives of the respondent did contribute to the correction of the error or oversight regarding the complainant’s papers. In this context, the informal discussion may not have followed the format anticipated by the complainant, nor, perhaps did it proceed in a manner that was satisfactory to him, but it did accomplish one of its purposes, which is to correct errors or omissions in the process. The Tribunal agrees with the view of the PSC that once the complainant was screened back into the appointment process, he did not require an informal discussion as he was no longer a person who had been eliminated from the appointment process.

79 Based on the above, the Tribunal finds that the complainant has not established that there was abuse of authority in the manner in which the informal discussion was conducted.

c) The issuance of a Notice of Consideration on the same day that the complainant was screened into the appointment process

80 Section 48(1) of the PSEA requires that the employer issue a Notice of Consideration after the assessment of candidates in an appointment process. The PSC Notification Policy requires deputy heads to ensure that “…the assessment of candidates is completed before any notification of consideration for an appointment is given…”

81Section 48(2) of the PSEA specifies that a waiting period must be fixed between the Notice of Consideration and the Notice of Appointment and no appointment may be made during the waiting period. Section 48(3) of the PSEA stipulates that a person may be appointed at the end of the waiting period “whether or not that person is the one previously considered.” Thus, the Notice of Consideration provided notice that these persons were being considered for appointment; it did not mean that they would be appointed.

82 Considering the sequence of events, the Tribunal cannot conclude that the respondent abused its authority by issuing the Notice of Consideration when it did. The complainant was initially eliminated from the appointment process on July 21, 2008. He contacted the respondent for an explanation on July 24, 2008. He received a response to his request on August 1, 2008, when the respondent left him an explanation by voicemail. The complainant responded to this voicemail, but not until August 11, 2008. The Notice of Consideration for Appointment was issued on August 12, 2008 at 9:27 a.m. The complainant was notified that he had been screened into the appointment process on August 12, 2008 at 1:01 p.m.

83 The Tribunal also notes that the Notice was not sent out by Mr. Baldwin but was issued by Human Resources under the signature of Ms. Ngombo who was not a member of the assessment board.

84 The notice was prepared and issued almost three weeks after the complainant had been eliminated from the appointment process and ten days after Mr. Baldwin’s voicemail explaining the reasons the complainant was eliminated. The complainant did not reply to the voicemail until August 11,  2008, twenty-four hours before the notice was issued. The fact that the notice had been issued did not mean that the persons identified in the notice would be appointed. They were being considered and, therefore, the respondent could screen the complainant into the appointment process, giving him an opportunity to be interviewed and considered for appointment.

85 As stated in Tibbs, at paragraph 65, “…much more is required than mere errors and omissions to constitute abuse of authority.” In this case, the evidence shows that the respondent did make an error but not one that constitutes abuse of authority. The assessment board quickly corrected the error when the complainant drew the significance of his papers to its attention. The purpose of informal discussion was met when the error made in eliminating the complainant was corrected by Mr. Baldwin. The late timing of the complainant’s response to Mr. Baldwin’s voicemail is a more likely explanation for the issuance of the initial Notice of Consideration than the allegation that there was a predetermined result.

86 The Tribunal finds that there is no evidence before it to make a finding that the assessment board had a closed mind to the complainant’s candidacy in the screening process. In conclusion, the Tribunal does not find abuse of authority in the screening of the complainant’s application.

Issue 2: Did the respondent abuse its authority in the interview process?

87 The complainant alleges that there was an abuse of authority in the manner in which the respondent managed his oral assessment, namely, that the assessment board had a closed mind and was just going through the motions during the interview; that the assessment board showed a lack of courtesy during the interview; that the assessment board was not properly constituted and that it provided more favourable treatment to the two eventual appointees; that Mr. Gu’s interview notes were changed to negatively affect the complainant’s assessment; and that the results of the assessment were both inaccurate and punitive. The Tribunal addresses these events below.

a) The allegation that the assessment board had a closed mind and showed a lack of courtesy during the interview process

88 The complainant alleges that certain events occurred that establish that the assessment board had a closed mind during the interview process. He submits that Mr. Baldwin was careless when he failed to ensure that Mr. Gellatly and Mr. Brown would not be in the interview room when he arrived for his interview. Mr. Baldwin acknowledged that this was an awkward situation.

89 Mr. Baldwin testified about the limited space available to his division, the multiple purposes of the room used for the interview, including luncheon meetings, and that the luncheon was breaking up when the complainant arrived early for his interview.

90 There is no evidence before the Tribunal that this constitutes specific wrongdoing on the part of the respondent. No doubt, the release of the initial Notice of Consideration contributed to the awkwardness of the situation. It was through the Notice that the complainant became aware that Mr. Gellatly and Mr. Brown were candidates for these positions. As stated above, there is no evidence that Mr. Baldwin was responsible for the timing of the issuance of this Notice.

91 The Tribunal also puts significant weight on the fact that the complainant did not allege that the situation impaired his ability to make an effective presentation during the interview. Also, the complainant said that he believed that the eventual appointees’ presence in the interview room was unintentional.

92 Furthermore, there is no evidence to show that the respondent was under an obligation to prevent candidates from coming into contact with each other. It is not uncommon, for example, for candidates in appointment processes to write exams for a position in the same room at the same time.

93 The complainant stated that he felt that he was treated disrespectfully at the end of his interview. Mr. Baldwin did not contradict the complainant’s allegation that he failed to thank him for his presentation.

94 The complainant argues that the Tribunal should infer from the respondent’s behaviour that the assessment board had already decided on the outcome of the assessment process, that it considered his candidacy an inconvenience, and that it was just going through the motions at his interview. The respondent argues that even if this was improper conduct, it was not significant.

95 The Tribunal finds that the respondent’s behaviour at the end of the interview was disrespectful to the complainant. While this behaviour was regrettable and awkward, the Tribunal does not conclude from this finding alone that the assessment board had a closed mind and did not fairly consider the complainant’s candidacy.

b) The allegation that the assessment board was not properly constituted and provided more favourable treatment to the eventual appointees

96 The complainant alleges that the board could not objectively assess the successful candidates because it had co-authored papers with them, because it included a board member who had recently been promoted by the other board member and because it did not include a member familiar with the complainant’s work. He further alleges that the assessment board provided one of the eventual appointees with more favourable treatment.

97 Under section 30(2) of the PSEA, it is the responsibility of the assessment board to determine if candidates meet the essential qualifications for the position being staffed. The PSC Assessment Policy provides that deputy heads must ensure that those responsible for assessment “have the necessary competencies to ensure a fair and complete assessment of a person’s qualifications.” Likewise, the PSC Assessment Policy provides that deputy heads ensure that those responsible for assessment “are not in conflict of interest and are able to carry out their roles, responsibilities and duties in a fair and just manner.”

98 Mr. Baldwin testified that his responsibilities include staffing positions in his division. Furthermore, he testified on the highly specialized nature of the work in MEAD. He also testified that his group was small and required people with unusual analytical abilities. The Tribunal finds that it is entirely reasonable for Mr. Baldwin to be on the assessment board for senior positions in his division.

99 The Tribunal also finds that it was reasonable to include Mr. Gu, a senior officer in MEAD, and someone familiar with its work, on the assessment board. The Tribunal fails to see the relevance of the complainant’s argument that Mr. Gu was recently promoted or that Mr. Baldwin played a role in that promotion. Mr. Gu was not being assessed in this process. There is no evidence that Mr. Gu’s promotion would affect his individual judgment, or the judgment of the board in general, in meeting the requirements of section 30 of the PSEA.

100 The Tribunal cannot accept the complainant’s argument that the assessment board should have included a member familiar with his current work in order to be objective. As noted in Sampert v. Deputy Minister of National Defence, 2008 PSST 0009 at para. 54, the requirement is that board members be familiar with the work of the position to be staffed. In this case, the most appropriate people to conduct the assessment are the people responsible for the positions to be staffed.

101 On the matter of the board’s ability to objectively assess papers co-authored with the two appointees, the Tribunal notes that for an ES-06 position in MEAD, it is not surprising that candidates who have produced papers relevant to the work of MEAD would submit such papers to the assessment board for their interviews. Furthermore, the evidence presented indicates that it is common in a field such as economics for persons to co-author papers. The paper submitted by the complainant for his presentation was a co-authored paper, as are 18 of the 26 publications listed in the complainant’s curriculum vitae. In a small group such as MEAD it appears normal for staff to co-author papers with their colleagues. Moreover, as noted by the respondent in its argument, the fact that the papers were co-authored with members of the assessment board does not necessarily mean that the board members will have a favourable view of the co-author’s contribution. In this context, it is worth noting that the objective of the interview was not to assess the paper itself but for the paper to serve as a vehicle for candidates to demonstrate the qualifications required for the position.

102 The Tribunal finds that the respondent’s decision to constitute the assessment board in the way that it did logically addressed its statutory obligation to ensure that candidates met the essential qualifications for the position being staffed. Mr. Baldwin and Mr. Gu meet the requirement that assessment board members be familiar with the work. The Tribunal also finds that the complainant has not established that the assessment board could not be objective in determining whether candidates met the essential qualifications for the position being staffed.

103 The complainant also alleges that one of the successful candidates was given favourable treatment because he was permitted to base his presentation on a paper that was not recent. The respondent argues that the paper in question was within, or acceptably close to the time frame established for a recent paper.

104 The complainant’s interview instructions were submitted at the hearing as an exhibit. The instructions asked the candidate to “…prepare a presentation on an economics paper of significance that you have recently published and make a presentation on this work that demonstrates how you meet the knowledge and ability categories of the competition.”

105 No definition of the meaning of a recent publication was provided. According to Mr. Baldwin’s testimony, since he was staffing senior positions, he did not want candidates basing their presentations on work they completed in university. The respondent noted that the definition of “recent experience” in the SMC is “…normally defined as at least four (4) years over the past seven (7) years.” It argued that the word “normally” in the definition implies that there is flexibility in interpreting the word “recent,” and, at the time of the interview in 2008, Mr. Gellatly’s paper was only marginally out of the time range provided in the SMC for recent experience.

106 The Tribunal notes that the terms “recent experience” and “recently published” are not necessarily the same. The respondent is offering the definition of “recent experience” as a proxy for “recently published.” The Tribunal acknowledges that there is a relationship between experience and the product of that experience which includes publications. The Tribunal also notes that the invitation to the interview is consistent with Mr. Baldwin’s testimony that the purpose of the presentation was not to assess the paper but to assess whether the candidate met the knowledge and abilities qualifications in the SMC.

107 The Tribunal finds that, based on the evidence before it, Mr. Gellatly’s paper did not go beyond the limits of what could be considered recent in this appointment process. Given the purpose of the paper and the explanation provided by Mr. Baldwin that he used the term recent to avoid a presentation based on a paper written in university, the Tribunal finds that the acceptance of this paper by the assessment board does not demonstrate favourable treatment or abuse of authority.

108 The Tribunal finds that the complainant has not established that the board’s assessments with respect to Mr. Brown and Mr. Gellatly were based on anything other than their qualifications for these positions. In this regard, it is noteworthy that the complainant specifically stated that he is not alleging personal favouritism in this case. The complainant also stated that he believes the two successful candidates are probably the best qualified for these positions. The complainant’s allegation that the assessment board could not assess the successful candidates in an unbiased manner is based largely on belief rather than evidence. An individual’s belief is not necessarily truth, as the Tribunal found in Carnegie v. Deputy Minister of Citizenship and Immigration Canada, 2009 PSST 0006 at para. 89; Robert and Sabourin at para. 83; and Addley v. Deputy Minister of Health Canada, 2009 PSST 0036 at para. 55.

c) The allegation that the interview notes of Mr. Gu were changed in order to negatively affect the complainant’s assessment

109 The complainant initially alleged that Mr. Baldwin instructed or convinced Mr. Gu to change his notes after the interview in order to reduce the complainant’s marks and ensure that he failed. In his argument, the complainant accepted Mr. Baldwin’s testimony that Mr. Gu was not instructed to change his notes. However, he still believes the notes were improperly changed so they would be consistent with the assessment board’s numerical rating of the complainant on competencies A3 and A4. Mr. Gu was not called as a witness during the hearing.

110 The Tribunal does not come to the same conclusion as the complainant. Mr. Baldwin’s evidence that he did not instruct Mr. Gu to change his notes is not disputed. In addition, it is common for the members of assessment boards to discuss their assessment of a candidate and to forge a consensus. The process of consensus seeking may lead to changes in opinions and ratings. Amended or revised notes are not by themselves evidence of improper behaviour.

111 The complainant’s argument that Mr. Gu altered his notes so that the complainant would be eliminated from the process is not supported by other evidence in Mr. Gu’s notes. The complainant’s allegations regarding changes to Mr. Gu’s notes relate only to the assessment of his communications and presentation abilities on A3 and A4. On A5, Mr. Gu noted that the complainant does not communicate well and there is no indication that these notes were altered in any way. Mr. Gu had already failed the complainant on this other qualification.

112 The Tribunal finds that the complainant’s allegation is based on conjecture. He has not demonstrated that Mr. Baldwin influenced or instructed Mr. Gu to change his interview notes. Nor has the complainant demonstrated that Mr. Gu changed his notes solely for the purpose of ensuring that the complainant failed A3 and A4.

d) The complainant’s belief that the results of the assessment were inaccurate and punitive

113 The complainant questioned the assessment board’s rating of his abilities during the interview. He alleges that board members must have missed some of his slides or misinterpreted his presentation. He states that Mr. Baldwin did not pay attention to his presentation, glancing at only a few slides. The complainant also argued that the respondent’s assessment of his presentation was punitive.

114 The respondent disagrees with the complainant’s inference that Mr. Baldwin’s failure to look at more of his slides implies that he was just going through the motions and had pre-determined the outcome of the assessment process. The respondent cited Mr. Baldwin’s testimony that he was concentrating on his notes during the interview and that he listened to every word in the complainant’s presentation.

115 In a number of decisions, the Tribunal has stated that its role is to examine the appointment process, and not to review a complainant’s marks or assess whether answers were correctly evaluated, unless there is evidence of wrongdoing in the evaluation process. (See, for example, Oddie, and Costello v. Deputy Minister of Fisheries and Oceans Canada, 2009 PSST 0032 at para. 69.)

116 First, the complainant submits that in assessing Ability A1, Mr. Baldwin’s interview notes fail to mention the large number of studies that he presented on slides 27 and 28 of his presentation. However, he does not dispute that Mr. Gu did cite these studies in his interview notes.

117 The parties submitted Mr. Gu’s and Mr. Baldwin’s handwritten notes of the complainant’s interview. Mr. Baldwin’s notes are also signed by Mr. Gu. Mr. Gu’s notes on A1 state, in part, that the complainant conducted a large number of studies for internal use. They also refer to a lack of vision. In Mr. Baldwin’s notes, the words “large volume” are underlined. His notes also include the following comments: “what is the theme? – does it contribute to our knowledge – what do we want to know.” Mr. Baldwin and Mr. Gu concurred on a score of 18 out of 30 for the complainant on this ability.

118 The Tribunal finds that even if Mr. Baldwin missed the information regarding the volume of the complainant’s studies, the assessment board did not. Mr. Gu noted this information in his notes and Mr. Baldwin testified that he and Mr. Gu discussed the complainant’s interview. The evidence also shows that the words “large volume” are underlined in Mr. Baldwin’s notes signifying that this subject was not ignored. Furthermore, the Tribunal notes that A1 is about more than the production of a large volume of studies, it is also about the ability to initiate, plan, develop and conduct these studies using various databases in the context of the ES-06 position. The notes of the board members clearly question the complainant’s qualifications to perform this ability at the level required for the position being staffed.

119 The complainant also argues that Mr. Gu’s interview notes on A3, the ability to effectively communicate, are inaccurate because they state that he had no outline or plan for his presentation. The complainant submitted a copy of his presentation showing an outline on slide 2.

120 The Tribunal heard evidence from Mr. Baldwin that senior specialists make presentations on sensitive matters to varying audiences, including parliamentary committees. He testified that communication skills are a very important qualification for this position and that the complainant’s communications abilities at the interview did not meet the assessment board’s expectations for an ES-06 position in MEAD. Although Ms. Thompson testified that the complainant is an effective communicator, she confirmed that her testimony related only to the complainant’s current position and not to the position in MEAD.

121 In his notes on A3, Mr. Gu commented that he found the complainant’s presentation was not coherent. Mr. Baldwin also made several comments which addressed the lack of coherence in the complainant’s presentation:

“no plan for presentation,” “right into presentation with tables - no explanation where going,” “disconnected: starts with data – returned to (unreadable) with no obvious relevance,” “stop/start presentation – what he started with, what went on to = difficult to follow because of disconnect.”

122 It is important to examine the complainant’s allegations in the overall context of the board members’ notes and the ability being assessed. It is apparent that a passing mark on A3 required more than a presentation outline. The notes of Mr. Baldwin indicate that he found the presentation to be disconnected. Mr. Gu’s notes indicate that he did not find the presentation to be coherent.

123 The Tribunal finds that the complainant has failed to demonstrate that the assessment board did not seriously consider his presentation, or failed to consider it in the context of the qualifications required and the assessment criteria used for the ES-06 position. Furthermore, it is not punitive to find that a person is not qualified for a position. While the complainant does not agree with the respondent’s assessment of his abilities, he has not demonstrated that the board abused its authority during the assessment process or that it treated him in a punitive manner.

Issue 3: Was there a reasonable apprehension of bias in the appointment process?

124 The complainant’s arguments and allegations imply that there was bias or a reasonable apprehension of bias in the appointment process. The Tribunal has addressed this issue in Denny v. Deputy Minister of National Defence, 2009 PSST 0029, at para 123-126. (See also Campbell v. Deputy Minister of Transport Canada, 2010 PSST 0014; and Gignac v. Deputy Minister of Public Works and Government Services, 2010 TDFP 0010 (Gignac).)

125 The test for reasonable apprehension of bias is well established. Suspicions, speculations or possibilities of bias are not enough and bias must be real, probable or reasonably obvious. (See Robert W. Macauley & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, vol. 4 (Toronto: Thomson Carswell, 2004), at 39.4.)

126 In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at 394, the test for a reasonable apprehension of bias is set out as follows:

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.…[T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.

127 In the more recent Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL), at para. 22 (QL), the Supreme Court articulated the test as follows: “The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.”

128 The person who is alleging the existence of bias or a reasonable apprehension of bias has the onus of demonstrating its existence.  Whether it exists depends entirely on the facts of the case and a mere suspicion of bias is not sufficient. See R. v. S. (R.D.), (1997) CANLII 324; [1997] 3 S.C.R. 484 at paras. 113 and 114.

129 The test must be applied with a consideration of the administrative decision being made. Members of the assessment board have a duty to act fairly, which includes a bias-free assessment. If a reasonably informed bystander looking at the process could reasonably perceive bias or an apprehension of bias on the part of one or more of the assessment board members, then the duty to act fairly has not been met. It is also important to emphasize that one of the key values articulated in the preamble of the PSEA is fairness. (See also Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817; and Gignacat para 62.)

130 The complainant has made several allegations in this complaint that are linked to a series of events in the appointment process. In considering these allegations, a reasonably informed person would observe that the respondent acknowledged its error in initially screening the complainant out of the appointment process and screened him back in. This person would also observe that the decision was taken as a result of communications with the complainant, in accordance with the objectives of informal discussion. This person would note that Mr. Baldwin was in the process of clearing the room ten minutes before the interview was to commence. He or she would also note that the complainant believed that the presence of the two candidates was unintentional and that he did not argue that it had an impact on his performance in his interview.

131 A reasonably informed person would also observe that despite the allegation that Mr. Baldwin did not pay serious attention to the complainant’s presentation, his interview notes address each of the assessment criteria and do so in more detail than the notes of the other board member, Mr. Gu. He or she would also note that there is no evidence to substantiate the allegation that Mr. Gu changed his notes solely to fail the complainant. In fact, Mr. Gu’s notes indicate clearly that the complainant would have failed a number of essential qualifications. Finally, while the reasonably informed person would find the failure to thank the complainant was inappropriate, it is likely that such a person would not conclude that the entire appointment process was tainted by bias or the apprehension of bias on that finding alone.

Conclusion

132 A number of well-formulated allegations are not sufficient for a finding of abuse of authority. The complainant must prove, on a balance of probabilities, that these allegations demonstrate a significant degree of improper conduct.

133 The complainant argues that his case is similar to that of Robert and Sabourin, where the Tribunal found that a number of serious errors and omissions, when taken as a whole, constitute abuse of authority. In that case, the Tribunal found a lack of written rationales; lack of a Statement of Merit Criteria; failure to complete a timely assessment of the appointee’s qualifications; failure to demonstrate that the position could not be filled with a person who met the language proficiency qualification; improper notification; and failure of the appointee to meet the essential qualifications.The present case falls considerably short of Robert and Sabourin. While the complainant has made a number of serious allegations, these allegations have not been proven to constitute abuse of authority. Although the Tribunal finds that the chairperson of the assessment board did not bring the interview to a courteous conclusion, it is not satisfied that this alone substantiates the allegation of abuse of authority in the appointment process as a whole.

134 Viewing all of the evidence individually and as a whole, the complainant has not proven, on a balance of probabilities, that the board abused its authority in the appointment process for the ES-06 position.

Decision

135 For the above reasons, the complaint is dismissed.

 

Kenneth J Gibson

Member

 

Parties of Record

Tribunal File:

2008-0610

Style of Cause:

Lawrence McKeown and the Chief Statistician of Canada of Statistics Canada

Hearing:

December 8 and 9, 2009
Ottawa, Ontario

Date of Reasons:

October 15, 2010

APPEARANCES:

For the complainant:

Lawrence McKeown

For the respondent:

Pierre Marc Champagne

For the Public
Service Commission:

Marc Séguin