FPSLREB Decisions

Reasons for Decision

Introduction

1The complainant, Ron Ammirante, alleges that the respondent failed to assess his qualifications in a transparent and unbiased manner. In particular, he alleges that the respondent abused its authority when it sought additional references and included those references in the assessment of his qualifications. He also takes issue with how the assessment method was applied. He further alleges that the assessment board was biased.

2The respondent, the Deputy Minister of Citizenship and Immigration, argues that the complainant was eliminated from the appointment process because he failed to meet three essential qualifications. The respondent submits that additional references were sought because the references provided by the complainant did not provide sufficient information for the assessment board to determine if he met the essential qualifications. According to the respondent, the assessment board acted within its sub‑delegated authority when it sought further information from past supervisors to ensure a full assessment of the complainant.

Background

3On April 11, 2007, the respondent initiated an internal advertised appointment process to establish a pool of candidates for Regional Program Advisor positions at the PM-05 group and level in the Department of Citizenship and Immigration Canada (CIC) (appointment process no. 07-IMC-IA-ONT-RHQ-03).

4The complainant was a candidate in this appointment process. He is a Regional Programs Consultant in Service Canada at the PM-04 group and level.

5The appointment process consisted of a review of candidate applications, a written knowledge test, a simulation exercise, an interview and reference checks.

6The complainant was interviewed on January 16, 2008 by two members of the assessment board, Darlyn Mentor, Director, Settlement Programs and Intergovernmental Affairs and Anne Solomatenko, consultant. The chair of the assessment board, Maureen Lalla-Khan, Director of Operations, in the Greater Toronto Area East, Ontario Region, did not participate in the interview. All three board members determined the final assessment of the complainant.

7On February 18, 2008, the complainant was informed by email that he had been eliminated from the appointment process because he failed to meet the essential qualification of judgment. He subsequently learned that he also failed to meet two other essential qualifications.

8On November 5, 2008, a notice of Information Regarding Acting Appointment was posted on Publiservice.

9The complainant filed his complaint with the Public Service Staffing Tribunal (the Tribunal) on November 6, 2008 pursuant to paragraph 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

Preliminary Matter

10The refusal of a summoned witness (one of the assessment board members) to attend the hearing was addressed in correspondence prior to the hearing and was discussed at the hearing. The complainant decided not to delay the hearing in order to proceed with his complaint.

Issues

11The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in assessing the complainant?
2. Was the appointment process tainted by bias?

Summary of Relevant Evidence

Evidence related to the interview and the simulation

12According to Ms. Mentor, the final scoring sheet for the complainant reflected a global assessment based on the interview, a simulation and the reference checks. She also confirmed that he passed the simulation exercise.

13The complainant acknowledged that he was interviewed by Ms. Mentor and Ms. Solomatenko. In his testimony, the complainant explained why he felt that he had passed the interview. He testified that when he reviewed Ms. Mentor’s interview rating guide, he noted that she had written the number 6 beside judgment. He interpreted that to mean she had given him 6 of a possible 7 points for that qualification. A pass mark was 4 out of 7. He acknowledged that there was no mark on Ms. Solomatenko’s interview rating guide for judgment. However, he noted that Ms. Solomatenko had written the number 4 beside consultation skills on her interview rating guide and the complainant’s final mark from the assessment board on this qualification was also a 4.

14Ms. Mentor testified that the numbers beside the competencies on her interview rating guide for the complainant were “ranges” and not “numbers.” She referred to them as ranges in reply to a number of questions from the complainant. They were not, she said, definitive scores but approximations. Their purpose was to help her recall the interview when the assessment board met as a group. She also stated that they represented her perspective only and did not represent the perspective of the board.

15Ms. Lalla-Khan was the delegated manager for the appointment process and the chair of the assessment board. Ms. Lalla-Khan acknowledged that Ms. Mentor had written a 6 beside judgment in her interview rating guide. She believed this mark was probably used as an indicator by the board member. She explained that the final score of 2 on judgment was an integrated score based on all of the assessment information.

16The complainant testified that the PM-05 position at issue reports through a director to Lucille Leblanc, the Regional Director-General, Ontario Region. He stated that Ms. Leblanc used to work in his current department, Service Canada, which was then part of Human Resources and Skills Development Canada (HRSDC). She was Sandra Ramsbottom’s supervisor (one of the references who would eventually be contacted by the respondent) at the time he worked for Ms. Ramsbottom. The complainant said that he inadvertently met Ms. Leblanc while waiting to take the simulation exercise, on January 16, 2008. She asked him why he was there and he told her that he was applying for the PM-05 position.

Evidence related to the references

17On January 15, 2008, the complainant received an email from assessment board member Ms. Solomatenko. The email stated, in part: “[...] I am writing now to request that you supply the names of three references and their contact details [...]. One of these references must be your current or recent supervisor.” (emphasis in text). He complied with this request, providing the names of his current supervisor, Tami Steele, and two colleagues, Lianne Dittmar and Kathleen McVeigh.

18Ms. Mentor acknowledged that she was familiar with the instructions emailed to the complainant by Ms. Solomatenko. She confirmed that he complied with this request. Ms. Lalla-Khan also confirmed that the complainant followed the instructions he was given.

19Ms. Mentor testified that the references for the complainant were conducted by Ms. Solomatenko or by herself. They briefed Ms. Lalla-Khan on their findings.

20According to Ms. Lalla-Khan, Ms. Leblanc came to her within a week of her encounter with the complainant. Ms. Leblanc suggested the board obtain a reference from his former supervisor, Ms. Ramsbottom. Ms. Lalla-Khan believed that Ms. Leblanc was Ms. Ramsbottom’s supervisor at the time the complainant reported to Ms. Ramsbottom.

21Ms. Lalla-Khan acknowledged that she reported to Ms. Leblanc but she did not believe that she was being directed by her to obtain a reference from Ms. Ramsbottom. She testified that she saw it as a suggestion. She raised the suggestion with the board because Ms. Mentor and Ms. Solomatenko were doing all of the reference checks. The board decided to pursue the reference because the suggestion came from a credible source who had worked at HRSDC and who knew that Ms. Ramsbottom had been the complainant’s supervisor. She said the board felt it would have been neglectful not to pursue the reference. Furthermore, according to Ms. Lalla-Khan, the references provided by the complainant had gaps, lacking specific examples, and some questions were not answered at all.

22Ms. Lalla-Khan also testified that the assessment board sought the advice of Human Resources on Ms. Leblanc’s suggestion to obtain a reference from Ms. Ramsbottom. She said that Human Resources advised the board that since this was an internal appointment process, there was no need to obtain the complainant’s approval before seeking a reference from a manager in the public service.

23According to Ms. Mentor, Ms. Lalla-Khan informed her that she had talked to Ms. Leblanc, and Ms. Leblanc had said that she was aware of labour relations challenges involving the complainant in his current department. Ms. Mentor was not familiar with these labour relations challenges and only knew about them through Ms. Lalla-Khan. Ms. Mentor believed that the assessment board would be neglectful if it did not follow up on the suggestion to obtain more references. Ms. Mentor said that Ms. Leblanc provided the contact information for Ms. Ramsbottom.

24Ms. Mentor testified that the decision to seek the additional references was made around January 17, 2008, after the interview and simulation exercise.

25Ms. Mentor and Ms. Lalla-Khan stated that Ms. Dittmar’s reference was sent to Ms. Solomatenko by email on January 22, 2008.Ms. Mentor said that she found Ms. Dittmar’s reference incomplete because she stated, in response to a number of questions, that she had not observed the complainant’s behaviour and could not comment. Ms. Mentor said the board did not go back to Ms. Dittmar to obtain further information because she felt there was no point in asking Ms. Dittmar to explain why she could not answer certain questions. Ms. Dittmar had no supervisory experience with regard to the complainant. Therefore, the board had insufficient information to properly assess him.

26Ms. Mentor conducted the reference with Ms. Steele by telephone on January 25, 2008. During the reference interview, Ms. Mentor took notes and, for verification purposes, repeated to Ms. Steele what she understood her to have said. She did not send the reference notes to Ms. Steele to be verified by her. In Ms. Mentor’s opinion, the reference with Ms. Steele was complete. On cross-examination by the respondent, Ms. Mentor testified that when she conducted the reference interview with Ms. Steele, she had to probe and ask follow-up questions. She said there was often a lack of clear, specific examples. She felt the reference was positive but it was not sufficient for a conclusive assessment of all of the complainant’s competencies.

27According to Ms. Mentor, Ms. McVeigh was on vacation and could not be reached for a reference. In response to a question from the complainant, she replied that she was unaware that Ms. McVeigh had tried to contact the assessment board. Ms. Mentor acknowledged that she might have considered trying to contact Ms. McVeigh, but it was unclear when she would be back from vacation and the assessment board already had four references.

28On cross-examination by the respondent, Ms. Mentor acknowledged that the assessment board had references from Ms. Steele and Ms. Dittmar, but concluded that it did not have enough information to finalize the assessment. Therefore, the board sought additional references.

29Ms. Mentor was asked if the assessment board sought additional references because the complainant’s references were not all supervisors or because Ms. Leblanc suggested that they do so. Ms. Mentor replied “both.”

30According to Teresa Johnson, Human Resources Advisor, the assessment board members contacted HRSDC and were provided with the name of Harry Bezruchkco, a former supervisor for the complainant.Ms. Mentor did not know who provided the contact information for Mr. Bezruchkco.Ms. Lalla-Khan testified that Mr. Bezruchkco’s name was obtained by Ms. Solomatenko who contacted HRSDC to obtain the name of another of the complainant’s supervisors. She believes the name was provided by a Ms. Young in HRSDC.

31Both Ms. Mentor and Ms. Lalla-Khan confirmed that Ms. Solomatenko conducted Mr. Bezruchkco’s reference on January 25, 2008. Ms. Mentor acknowledged that Mr. Bezruchkco was on leave from the federal public service when he was approached for a reference. His position was in the process of being transferred to the Ontario public service. However, Ms. Mentor stated that someone on leave is still an employee.Ms. Lalla-Khan testified that she was aware that Mr. Bezruchkco was on leave and was in transition to the Ontario Government, but he was still a federal public servant when the reference was requested from him.

32Ms. Solomatenko provided her notes to Mr. Bezruchkco and, after receiving his comments, finalized the reference on February 5, 2008. Ms. Mentor acknowledged that although the reference was not complete until February 5, 2008, it is dated January 25, 2008.

33Ms. Lalla-Khan acknowledged that in his reference, Mr. Bezruchkco said that he was resigning from the federal public service at the end of January. She also acknowledged that although the date of the reference remained January 25, 2008, she was aware that discussions to revise the reference continued into February 2008.

34According to Ms. Johnson, Ms. Leblanc provided the name of Ms. Ramsbottom, a former supervisor of the complainant, to the assessment board. Ms. Lalla-Khan confirmed that Ms. Ramsbottom’s reference is dated January 29, 2008. Ms. Mentor conducted the reference and testified that it was very complete. She said that Ms. Ramsbottom took a lot of time and provided clear examples in all areas. Ms. Ramsbottom said that the complainant had strong technical competencies but she had concerns about other areas such as judgment.

35On re-examination by the complainant, Ms. Mentor stated that the board did not consider asking the complainant for additional supervisory references, because it already had three supervisors: Ms. Steele, Ms. Ramsbottom and Mr. Bezruchkco.

Evidence related to the complainant’s final assessment

36According to Ms. Mentor, she, along with Ms. Lalla-Khan and Ms. Solomatenko, determined the final scoring for the complainant. The final scoring sheet reflected a global assessment based on the interview, a simulation and the reference checks.

37Ms. Lalla-Khan confirmed that the primary decision-making tools were given more weight than the secondary tools, and that reference checks were a secondary tool in assessing the judgment qualification. She explained that the final score of 2 on judgment was an integrated score based on all of the assessment information. Ms. Mentor acknowledged that the assessment board used the references from Ms. Steele and Ms. Dittmar in arriving at its global assessment. Ms. Lalla-Khan confirmed that the references of Ms. Ramsbottom and Mr. Bezruchkco were also used in assessing the complainant.

38On cross-examination, Ms. Lalla-Khan confirmed that the complainant had failed three essential qualifications, one being judgment. She also stated that the assessment board had a discussion after each step in the process and it used the seven-point rating scale in each phase to estimate how the candidates were doing. The final marks reflected a board consensus based on a global assessment of the simulation, interview and reference checks.

39On re-examination, Ms. Lalla-Khan testified that there is no record of the individual marks of the board members on each phase of the assessment process. She personally did not write down her marks. She also assumed the other board members did not either. The only record is the consensus of the board. Ms. Lalla-Khan was asked how the board could reconcile their marks later on if they did not keep individual assessments. She replied that, in hindsight, it probably would have been a good idea to do so. However, she testified that the board met right after the simulation to determine if the candidates had passed. The interviews took place shortly after and then the references were conducted.

Events subsequent to the elimination of the complainant from the appointment process

40Ms. Johnson testified that her assistant sent the email of February 18, 2008 to the complainant informing him that he had been eliminated from the appointment process. She acknowledged that he had failed to meet three essential qualifications but the email only identified judgment because failure on one essential qualification is sufficient to eliminate someone from an appointment process.

41The complainant subsequently sent a series of emails to Ms. Lalla-Khan and Ms. Mentor seeking information on why he failed this essential qualification. He had an informal discussion by telephone with Ms. Mentor and Ms. Solomatenko on April 2, 2008.

42As a result of the emails and informal discussion, the complainant learned that the assessment board had obtained two additional references on his candidacy. He testified that he was shocked when he read the two additional references provided by former supervisors, Ms. Ramsbottom and Mr. Bezruchkco. He said that he had never received negative feedback from them before and that both had provided him with good references in the past. He disagreed with the references and submitted letters he had sent to the referees objecting to the content of their references. In his emails, he asked the assessment board why they sought additional references and who provided the names of these references to them.

43On April 16, 2008, the complainant received an email from Ms. Mentor that read in part:

The references that you provided were not all current or past supervisors. Furthermore, one could not provide a full reference based on the fact that she had never supervised you. The Board was required to conduct reference checks from supervisors who have overseen and managed your work.

44Ms. Lalla-Khan was asked if, despite the instructions given to the complainant, the assessment board wanted three supervisory references right from the start. She was referred to the April 16, 2008 email from Ms. Mentor to the complainant. Ms. Lalla‑Khan replied that it would have been sufficient if the referees provided by the complainant had been able to answer all of the reference questions. She also testified that candidates usually provide supervisors as referees.

45Ms. Mentor acknowledged that some of the reference questions would be difficult to answer if the referee was not the subject’s supervisor. She also acknowledged that only one supervisor reference was asked for, but most candidates provided both current and past supervisors. Ms. Mentor stated that the assessment board’s request for only one supervisor “could have been further clarified.”

46Regarding the sources of the two additional references, Ms. Mentor’s April 16, 2008 email stated:

The Board knew your previous supervisor, who works in a Service Canada office that is at 25 St-Clair Avenue, the same building where the selection process was being conducted. The discussion with her prompted the board members to seek further information. We identified your 2^nd prior supervisor by contacting the person who currently holds his position.

47The complainant testified that he assumed that the source of the first reference was Ms. Ramsbottom herself, because she is a previous supervisor of the complainant who works at 25 St. Clair Avenue. He assumed that Ms. Steele, his current supervisor, must be the source of the “2^nd prior supervisor,” because she succeeded Mr. Bezruchkco in the position in July 2007 on an acting basis. However, Ms. Steele subsequently provided the complainant with a written statement that she did not provide the name of any other reference.

48The complainant testified that, during the informal discussion, he asked Ms. Mentor if Ms. Leblanc had discussed his candidacy with the board, but he says she would not answer his question. Not satisfied with Ms. Mentor’s response, the complainant again sent her an email requesting the names of the persons who provided the additional references. On April 28, 2008, Ms. Mentor replied stating:

I believe you have been provided this information already during our informal discussion. During that lengthy discussion, I answered many of your questions, several of which have also been repeated (and answered again) in follow-up emails.

You have been provided with the opportunity for an informal discussion and given clear information – verbally and in writing – in regards to your results in this process. Given this fact, I will be unable to answer further inquiries from you.

49According to the complainant, the informal discussion was not lengthy, lasting about ten minutes. He was still not satisfied as the board had not given him the names of the persons who provided the additional references and he informed Ms. Mentor via email that he would pursue his request for the names through the access to information process.

50The complainant testified that, during the informal discussion, Ms. Mentor informed him that the two additional references from Ms. Ramsbottom and Mr. Bezruchkco were the reason he was eliminated from the appointment process.

Arguments of the Parties

A) Complainant’s Arguments

51The complainant argues that the assessment board demonstrated bad faith and a lack of fairness and transparency in assessing him.

52In her email of April 16, 2008, Ms. Mentor stated that the board sought additional references because the references provided by the complainant were not all current or past supervisors. Ms. Mentor went on to state in the email that the Board knew the complainant’s previous supervisor, who worked at 25 St-Clair Avenue, where the selection process was conducted. Discussion with her prompted the board members to seek further information.

53The complainant submits that this is in direct conflict with Ms. Mentor’s testimony before the Tribunal. The evidence shows that the name of Ms. Ramsbottom was obtained from Ms. Leblanc. This information was never provided to the complainant.

54Ms. Mentor’s email also stated: “We identified your 2^nd prior supervisor by contacting the person who currently holds his position.”The complainant submits that Ms. Steele is the person who currently holds this position and she did not provide the board with the names of any additional references. Furthermore, Ms. Lalla-Khan testified that the name of the 2^nd prior supervisor, Mr. Bezruchkco, was obtained from a Ms. Young. The complainant submits that he has been attempting to obtain this information since his informal discussion almost two years ago. He argues that this is evidence of a lack of transparency during the informal discussion.

55The complainant argues that during the informal discussion he was unable to obtain clear and consistent answers about his elimination from the assessment process and how the references were conducted. Following a series of emails, the complainant had to resort to access to information and this complaint in order to obtain the information he requested. The assessment board demonstrated a lack of fairness and transparency by failing to provide the complainant with accurate and timely information.

56The complainant also takes issue with Ms. Mentor’s explanation in her email that the board was required to seek additional references because the complainant’s referees were not supervisors or the references were incomplete. According to the evidence of the board members, he submits that the board had already decided to follow-up on the concerns raised by Ms. Leblanc, and to obtain a reference from Ms. Ramsbottom a week before they could have known that the references provided by the complainant would be incomplete.

57Furthermore, the complainant argues that the instructions he received to provide three references, one of whom must be a current or recent supervisor, were erroneous. He argues that some reference questions could only be answered by a supervisor. This explains why some of the questions went unanswered or were incomplete on Ms. Dittmar’s reference. By providing only one supervisor and two colleagues as references, the complainant was immediately placed at a disadvantage in the reference phase of the assessment process. The assessment board should have known this would be the case, should have requested all supervisors at the outset or should have realized its error and taken corrective action. Its failure to do so created an unfair situation for the complainant. By failing to tell the complainant that the instructions he was given regarding referees were faulty, the complainant argues that the board demonstrated a degree of recklessness which constitutes bad faith. The complainant cited the Federal Court decision in Hammond et al., [2009] FC 570, paragraph 15, in support of his argument.

58Even if the reference instructions given to the complainant had been appropriate, he argues that the board acted in bad faith by not going back to Ms. Dittmar to ask her to elaborate on her incomplete answers. He also argues that the board did not make a reasonable effort to contact his third referee, Ms. McVeigh. The board did not make any appointments under this process until June 2008, so there was ample time to obtain Ms. McVeigh’s reference. At the same time, the board went out of its way to obtain a reference from Mr. Bezruchkco, who was in the process of leaving the public service.

59Given that Mr. Bezruchkco had worked for the Ontario government for a full year before he was approached for a reference, and considering he was about to resign from his federal government position, the complainant believes that the board should have sought his consent before asking Mr. Bezruchkco for a reference. Furthermore, Ms. Mentor testified that Mr. Bezruchkco’s reference was not complete until February 5, 2008. Mr. Bezruchkco’s reference stated that he was resigning from the federal government at the end of January 2008.

60The complainant notes that there is no information available on amendments that were made to Mr. Bezruchkco’s reference between January 25 and February 5, 2008. The complainant also notes that the reference check from Ms. Steele did not show the period she supervised the complainant or the work location. Also, the complainant’s final scoring summary sheet was not signed.

61The complainant submits that Ms. Lalla-Khan testified that she was advised by Ms. Leblanc to seek a reference from Ms. Ramsbottom. Ms. Mentor testified that Ms. Leblanc had communicated labour concerns regarding the complainant to the assessment board. He notes that Ms. Lalla-Khan and Ms. Mentor had reporting relationships to Ms. Leblanc. In conveying her disapproval of the complainant to the board, Ms. Leblanc created a reasonable apprehension of bias. The complainant submits that a reasonable person, looking objectively at the situation, would conclude that Ms. Leblanc’s intervention had biased the board given her reporting relationship with the board members. The complainant cited Denny v. Deputy Minister of National Defence et al., [2009] PSST 0029, paragraph 126, in support of his position.

62According to the complainant, the evidence shows that up to the end of his interview on January 16, 2008, he had passing marks on all competencies assessed. On the judgment qualification, Ms. Mentor rated him 6/7 on her interview rating sheet. According to the rating guide, the primary tools for assessing judgment were the simulation and the interview. References were a secondary tool. Nevertheless, the complainant’s score was reduced from above average to 2/7 following the references. When the reference checks from Ms. Ramsbottom and Mr. Bezruchkco were factored in, the complainant went from a passing mark to failing marks below 4/7 on three qualifications. This demonstrates the weight assigned to these two references by the board.

63In conclusion, the complainant argues that the evidence concerning lack of fairness and transparency and the evidence of bad faith and bias can only lead to the conclusion that abuse of authority took place in this appointment process.

64If the Tribunal substantiates his complaint, the complainant requests that the Tribunal order the suspension of the delegated staffing authority of Ms. Mentor and Ms. Lalla-Khan. During the suspension, the respondent is to be ordered to provide them with training to ensure that they understand their responsibilities and obligations under the PSEA. The complainant cited the Tribunal’s decision in Cameron and Maheux v. Deputy Head of Service Canada et al., [2008] PSST 0016, in support of his proposed corrective action.

B) Respondent’s Arguments

65The respondent argues that the essence of the complaint is that the assessment board abused its authority when it obtained two references from past supervisors without the complainant’s consent.

66Based on the testimony of Ms. Mentor and Ms. Lalla-Khan, the respondent argues that the references provided by the complainant did not provide sufficient information to assess him. Ms. Dittmar’s and Ms. Steele’s references were either incomplete or lacking in details and examples. Ms. McVeigh was on vacation and did not provide a reference.

67Citing Dionne v. Deputy Minister of National Defence et al., [2008] PSST 0011, the respondent noted that an assessment board has a duty to ensure that it has sufficient information to assess a candidate. In order to complete the assessment, the assessment board obtained references from two of the complainant’s previous supervisors, Ms. Ramsbottom and Mr. Bezruchkco.

68According to the respondent, it is unclear when the names of the two additional references were obtained by the board, but it is clear that they received the reference checks from Ms. Dittmar and Ms. Steele before the other two. It cannot be inferred that the assessment board decided to obtain the two additional references before the first two reference checks were completed.

69Although Ms. Leblanc provided the assessment board with the name and contact information for Ms. Ramsbottom, the respondent contends that there is no evidence before the Tribunal that Ms. Leblanc influenced or exercised pressure on the assessment board. Ms. Lalla-Khan testified she did not feel directed to contact Ms. Ramsbottom. She considered it a suggestion and transmitted this information to the other board members. Nor is there any evidence that Ms. Leblanc conveyed negative or detrimental information to the board regarding the complainant. The respondent argues that the facts in this case are very different from Denny. There is no evidence here that the complainant was treated differently from other candidates.

70The respondent notes that the consensus of the assessment board that the complainant failed the qualification of judgment, and two other essential qualifications, was based on his performance in the simulation, the interview and the four available reference checks. There is no evidence that the assessment board had a score for the complainant before the reference checks were completed. Ms. Mentor’s assessment of the complainant’s interview reflects her notes only. The three assessment board members only arrived at their decision after all of the assessment tools were completed.

71The respondent cites Dionne, paragraph 55, to argue that there is no legal requirement for the assessment board to obtain the consent of a candidate to seek further references. It notes that the Job Opportunity Advertisement clearly states that references may be sought. By applying for the position, the candidates implicitly consent to reference checks. The respondent also cited Oddie v. Deputy Minister of National Defence et al. [2007] PSST 0030, paragraph 71. In addition, the respondent submits that although it is not bound by Public Service Commission (PSC) guides, the Guide – The Assessing for Competencies Series: Checking References: a window into the past states that consent is not required to obtain a reference from within a federal institution. At the time the reference checks were conducted, both Ms. Ramsbottom and Mr. Bezruchkco were employees in a federal institution.

72The respondent agrees that the complainant complied with its request for three references, only one of which had to be a supervisor. It submits that the board did not disregard Ms. Dittmar’s reference because she was not a supervisor. However, the sole supervisory reference provided by the complainant did not provide enough information to assess him, thus the assessment board needed at least one other supervisor to complete the information that was missing. It was only once it had the references from Ms. Dittmar, Ms. Steele, Ms. Ramsbottom and Mr. Bezruchkco that it felt it had sufficient information to assess the complainant. There is no evidence that the references of Ms. Ramsbottom or Mr. Bezruchkco were sought in bad faith or that the board was fishing for unfavourable references. The board acted in good faith with the sole purpose of fairly assessing the complainant. The respondent cited Portree v. Deputy Head of Service Canada et al., [2006] PSST 0014, paragraph 59, in support its position that the assessment board should determine if it has sufficient information.

73The respondent submits that the complainant’s disagreement with the content of Ms. Ramsbottom’s and Mr. Bezruchkco’s references does not demonstrate abuse of authority. The purpose of reference checks is to obtain accurate and relevant information about a candidate whether positive or negative. Furthermore, not all of the information in the reference checks was unfavourable. The respondent cited Portree, paragraphs 51 and 52, Dionne, paragraphs 50-58 and Oddie, paragraphs 66-72 in support of this principle.

74The respondent argues that the threshold for establishing abuse of authority is high. It also argues that an error, omission or improper conduct does not constitute abuse of authority, unless there is such serious recklessness or carelessness that bad faith can be presumed. The respondent cited a number of cases in support of its position.

75In conclusion, the respondent argues that the assessment board acted in good faith. It does not believe that there were any errors or omissions in this case, but if there were, they do not constitute serious recklessness necessary for a finding of bad faith. The respondent submits that the complainant has not proven abuse of authority under section 77 of the PSEA and requests that the complaint be dismissed.

C) Public Service Commission’s Arguments

76The PSC did not attend the hearing but submitted written arguments.

77In the PSC’s view, the complainant alleges that the respondent considered unfair and biased references in assessing the complainant’s qualifications.

78The PSC states that its Assessment Policy requires that “[t]he assessment processes and methods effectively assess the essential qualifications [...].” The PSC Guidance Series – Assessment, Selection and Appointment document states that “[t]he amount of information needed to assess a person’s competence with respect to a particular qualification depends on the nature and importance of the qualification, as identified by the manager.” The board must ensure that it has sufficient information to determine in an objective and transparent manner that the person meets the qualifications.

79The PSC reviewed the references provided by Ms. Steele and Ms. Dittmar. It notes that the referees were unable to answer all questions and the answers to other questions were lacking in detail. Consequently, the respondent complied with the PSC’s Assessment Policy when the board chose to seek additional references.

80Nevertheless, the PSC notes that if the assessment board wanted and needed all three of the references to be supervisors, they should have specified this requirement in their request to the candidate. The PSC believes this would have contributed to a more transparent and fair process. The PSC states that transparency and fairness are two guiding values set out in the PSC’s Appointment Policy.

81The PSC submits that under its document Checking References: a window into the past, an assessment board is not required to consult a candidate about who they will contact for references for internal public service processes. Therefore, there was no obligation to seek the complainant’s approval to communicate with Ms. Ramsbottom and Mr. Bezruchkco. However, this document sets out that it would be a courtesy to candidates to inform them. This would also promote transparency and fairness.

82The PSC is of the view that it was consistent with its policies and guides for the assessment board to use more than one tool to assess the essential qualifications.

83The PSC submits that the reference check portion of the assessment complied with the PSC’s Assessment Policy. However, it believes that it would have been more transparent if the assessment board had expressed how it reconciled the conflicting information obtained from the different assessment tools in concluding that the complainant did not meet the three essential qualifications. This is particularly the case with respect to the judgment qualification where the references were a secondary tool, and the complainant apparently failed due to the reference checks.

84The PSC submits that if the Tribunal finds that the assessment process was tainted by bias, then it would reverse its position that the respondent complied with the PSC’s Assessment Policy when the board chose to seek additional references.

D) Complainant’s Reply Argument

85The complainant submits that Ms. Lalla-Khan acknowledged in an email dated February 22, 2008, that Ms. McVeigh left a voicemail with a board member on the day she departed on vacation. The complainant believes that the respondent should have tried to get back to Ms. McVeigh for a reference but it made no attempt to determine when she was returning from vacation.

86The complainant challenges the respondent’s claim that Ms. Leblanc did not convey any negative or detrimental information to the board concerning the complainant. The complainant submits that according to Ms. Mentor’s testimony, the assessment board discussed Ms. Leblanc’s comments to Ms. Lalla-Khan a day after the complainant’s interview and simulation exercise. This would have been January 17, 2008. Ms. Mentor testified that Ms. Leblanc mentioned labour relations concerns regarding the complainant. The complainant also noted that Ms. Solomatenko’s email of January 22, 2008 to Ms. Lalla-Khan and Ms. Mentor, concerning the reference from Ms. Dittmar, mentions that there is no detail on the “areas of concern.” Thus, the board was aware of negative comments from Ms. Leblanc about the complainant before starting the reference checks on January 22, 2008. The complainant notes that Ms. Ramsbottom and Mr. Bezruchkco knew each other and that both mentioned grievances filed by the complainant in their references.

87According to the complainant, the assessment board did not have to go on a fishing expedition to obtain negative information on the complainant. Ms. Leblanc identified areas of concern for them. The complainant argues that Ms. Leblanc referred the assessment board directly to Ms. Ramsbottom because she knew that Ms. Ramsbottom would provide information regarding the labour concerns.

88The complainant also challenges the respondent’s claim that all candidates were treated the same. He submits that according to Ms. Mentor’s testimony, most candidates provided supervisors as references. The complainant only provided one supervisor because that was all that was asked of him. The complainant argues that it appears to have been a matter of luck whether or not candidates provided the assessment board with all supervisory references.

89The complainant also commented on the PSC’s arguments. The complainant argued that the PSC, not having heard the testimony of the witnesses, was not aware that the assessment board had already decided to seek additional references before it had assessed the references provided by the complainant.

Relevant Legislation

90This complaint was filed under paragraph 77(1)(a) of the PSEA:

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

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

[...]

91The preamble to the PSEA reads, in part:

[...] the Government of Canada is committed to a public service that [...] is characterized by fair, transparent employment practices, respect for employees, effective dialogue, and recourse aimed at resolving appointment issues;

92Abuse of authority is not defined in the PSEA, but subsection 2(4) states: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

93Paragraph 30(2)(a) of the PSEA reads as follows:

30. [...]

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

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

[...]

94Section 36 of the PSEA reads as follows:

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

95Section 16 and subsection 29(3) of the PSEA provide that deputy heads are subject to PSC policies:

16. In exercising or performing any of the Commission’s powers and functions pursuant to section 15, a deputy head is subject to any policies established by the Commission under subsection 29(3).

29. [...]

(3) The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.

Analysis

Issue I: Did the respondent abuse its authority in assessing the complainant?

96The Tribunal has previously stated that bad faith is one of the most serious forms of abuse of authority (Cameron and Maheux; Beyak v. Deputy Minister of Natural Resources Canada et al., [2009] PSST 0007). As the Tribunal found at paragraph 61 in Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, “[I]n construing the meaning of abuse of authority in the context of PSEA complaints, the Tribunal must look at the whole scheme of the PSEA, including the preamble. [...]” At paragraph 64 of the same decision, the Tribunal found that the preamble to the PSEA clarifies the values and ethics that should characterize the exercise of managerial discretion in staffing.

97In this case, the Tribunal finds that the respondent failed to observe the PSEA’s values. Its assessment of the complainant lacked fairness and transparency. This amounts to bad faith and constitutes abuse of authority. The reasons for these findings are set out below.

a) Did the respondent abuse its authority in applying the assessment method?

98The Tribunal’s role is to examine whether or not there was any impropriety in the assessment process. Specifically, the Tribunal could find that there was abuse of authority in the application of the assessment methods where the complainant establishes that the assessment method has no connection to the qualifications or does not allow those qualifications to be assessed, that the methods are unreasonable or discriminatory, or that the result is unfair. If the method is flawed, the outcome cannot be considered reasonable or fair. (See Jogarajah v. Chief Public Health Officer of the Public Health Agency of Canada et al., [2008] PSST 0015, at paragraph 34; Jacobsen v. Deputy Minister of Environment Canada et al., [2009] PSST 0008, at paragraph 36; Chiasson v. Deputy Minister of Canadian Heritage et al., [2008] PSST 0027,at paragraphs 50 and 53; Ouellet v. President of the Canadian International Development Agency et al., [2009] PSST 0026, at paragraph 26; Denny,at paragraph 144).

99The complainant testified that he was told by Ms. Mentor during his informal discussion that he was eliminated from the appointment process because of the additional references obtained from Ms. Ramsbottom and Mr. Bezruchkco. During their testimony, both Ms. Mentor and Ms. Lalla-Khan stated that the complainant’s final score of 2 on judgment was an integrated score based on the simulation, the interview and the references.

100Ms. Mentor testified that the complainant passed the simulation exercise. Ms. Mentor also testified about her interview notes. The Interview Questions and Rating Guide used for the interview provides instructions under each competency that state: “Using 7 point scale, the board members will assess candidate’s responses made to the scenario situation.” Ms. Mentor and Ms. Lalla-Khan testified that a passing mark was 4. Ms. Mentor’s notes show a number of 4 or higher beside each competency assessed. She placed the number 6 beside judgment. 

101Ms. Mentor repeatedly referred to the numbers on her interview notes as ranges. She denied they were numbers. The complainant contends they are numbers and that they show that Ms. Mentor passed the complainant on judgment in the interview. The Tribunal is faced with two versions of the meaning of these numbers and must determine which version is more credible. In Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), the test to apply to issues of credibility is well established.  The test provides that “...[t]he truth of the story of a witness [...] must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and  those conditions.”  See Glasgow v. Deputy Minister of Public Works and Government Services et al., [2008] PSST 0007, paragraph 45.

102The Concise Canadian Oxford Dictionary, 2005, s.v. “range” includes several definitions of the word range. None of the definitions would include the concept of a single number in this context. On the preponderance of the probabilities, a practical and informed person would not consider as reasonable Ms. Mentor’s contention that these numbers are ranges.

103On the contrary, a practical and informed person would find it reasonable that the numbers on Ms. Mentor’s interview notes reflect her assessment of the complainant during the interview. Based on these numbers, such a person would conclude that the complainant’s version is credible and that Ms. Mentor gave the complainant a passing mark on the judgment qualification.

104The other board member who interviewed the complainant, Ms. Solomatenko, only put a number beside one qualification on her rating sheet. She did not put a number beside the judgment qualification. However, under the judgment qualification in her interview notes, Ms. Solomatenko wrote, “Candidate possesses satisfactory judgment.”

105For all these reasons the Tribunal finds that the complainant passed the interview and the simulation.

106During their testimony, both Ms. Mentor and Ms. Lalla-Khan were asked how they determined the final mark for the complainant on judgment.  They both confirmed that the final mark reflected a consolidated score based on the simulation, the interview and the references. They also confirmed that the references were a secondary tool for judgment. However, while their testimony described the components of the decision‑making process, they provided no explanation of how the specific marks in the global rating were determined.

107There is nothing in the testimony or in the documentation provided by the respondent to explain the difference between a primary and a secondary decision‑making tool or how the tools were weighted or used. The written rationale on the complainant’s global scoring sheet refers only to the references:

Candidate not recommended for inclusion in the pool. While it is evident that the candidate possesses good thinking and analytical skills, the concerns raised by the information provided by references [...] are sufficiently serious for us to guess the individual’s capacity to effectively integrate into an environment where team work, team skills are critical. The board has also paid close attention to info and examples provided by the references with respect to judgement [...] and have concluded on the totality of the evidence that this candidate has not demonstrated the level of competency required for the position.

108This rationale is unsigned, but the Tribunal is satisfied, from the evidence, that it reflects the global assessment of the board. It also suggests that the references were the determining or primary factor in arriving at the complainant’s score on the essential qualifications that he failed.

109Ms. Lalla-Khan testified that there is no record of the individual marks of the board members on each phase of the assessment process and that the only record of the assessment process is the consensus of the board. She agreed that, in hindsight, it might have been a good idea if the board members had kept a record of their individual assessments.

110In Tibbs, the Tribunal stated at paragraph 54 that it is open for the Tribunal to draw reasonable inferences from uncontested facts and if the respondent does not present evidence to explain its reasons for a particular course of action or conduct, it risks being faced with a substantiated complaint.

111Other than agreeing that the references were a secondary tool in the case of judgment, the members of the assessment board provided no explanation, when asked at the hearing, how the complainant could fail this qualification on the basis of a secondary decision-making tool. The respondent provided no evidence to demonstrate how a secondary tool could override one or more primary decision-making tools. Paragraph 30(2)(a) and section 36 of the PSEA provide that assessment processes and methods must effectively assess the essential qualifications. The assessment board has failed to demonstrate how the application of the assessment method led to the complainant’s final score on judgment. Therefore, the Tribunal is not satisfied that the manner in which the assessment method was applied effectively measured whether the complainant met or failed to meet this essential qualification for the position as required under paragraph 30(2)(a) and section 36 of the PSEA.

b) Selecting and assessing the references

112The complainant argues that the instructions he received to provide three references, one of whom must be a current or recent supervisor, were erroneous. By failing to tell him that the instructions he was given were faulty, the complainant argues that the board demonstrated a degree of recklessness which constitutes bad faith. The respondent argues that it was necessary to obtain the additional references from Ms. Ramsbottom and Mr. Bezruchkco because the references provided by the complainant did not provide sufficient information to fully assess him.

113According to the Tribunal’s jurisprudence, by applying for a position in the public service, candidates implicitly consent to reference checks. While it may be preferable to have a candidate’s consent, there is no legal requirement to do so. What is important is that the referee is familiar with the work of the candidate, and can provide sufficient information to allow the board to conduct an adequate assessment of a candidate’s qualifications (See Oddie, at paragraph 71; Dionne,at paragraph 55; Melanson and Innes v. Deputy Minister of National Defence et al., [2008] PSST 0014; at paragraph 66). Although Mr. Bezruchkco left the public service before his reference was finalized, his reference interview took place while he was still employed in the public service.

114Nevertheless, the reference checking process must respect the staffing values set out in the preamble to the PSEA. The Tribunal is not satisfied that this is the case here. The evidence shows that Ms. Mentor was familiar with the instructions emailed to the complainant, and knew that some of the reference questions would be difficult to answer if the referee was not the subject’s supervisor. Ms. Mentor stated that the assessment board’s request for only one supervisor “could have been further clarified.” Furthermore, Ms. Mentor’s email to the complainant, dated April 16, 2008, states the following: “[...] the Board was required to conduct reference checks from supervisors who have overseen and managed your work” (emphasis added).

115If the assessment board wanted all referees to be supervisors, it should have requested all supervisors at the beginning of the process. By not complying with its own requirement the respondent demonstrated carelessness.

116Moreover this carelessness was serious as it did not ensure that candidates were assessed on the same basis. Ms. Lalla-Khan testified that candidates usually use supervisors as references. Ms. Mentor testified that some of the reference questions would be difficult to answer if the referee was not a candidate’s supervisor. Therefore, the complainant was placed at a disadvantage compared to other candidates even though he followed the instructions he was given. Candidates who chose to provide two or three supervisors as references increased their chances that the referees would be able to answer all of the reference questions. Given the instructions provided to the candidates, it was a matter of chance whether a candidate provided the supervisory references the assessment board required.

117The evidence also demonstrates that the decision had already been made to pursue Ms. Leblanc’s comments irrespective of the adequacy of the complainant’s references. On January 15, 2008, Ms. Solomatenko asked the complainant to provide the assessment board with three references. The complainant’s interview and simulation exercise took place on January 16, 2008. It was while waiting to take the simulation exercise that the complainant had his chance encounter with Ms. Leblanc. According to Ms. Lalla-Khan’s testimony, Ms. Leblanc came to see her to discuss the complainant within a week of the chance encounter. Ms. Mentor’s testimony was more specific. She said the assessment board decided to seek the additional references, based on Ms. Leblanc’s advice, “around January 17.”  

118The assessment board received Ms. Dittmar’s reference by email on January 22, 2008. Ms. Mentor conducted Ms. Steele’s reference by telephone and it is dated January 25, 2008. Clearly, the assessment board could not have determined on January 17, 2008, that it needed additional references because those provided by the complainant were inadequate. Even if the decision was taken up to a week later, it would have occurred before Ms. Steele’s reference was conducted. However, Ms. Steele’s reference is dated January 25, 2008 and Mr. Bezruchkco’s reference was started on the same date. The Tribunal therefore finds that the decision to obtain the additional references was made before the complainant’s references were completed.

119Ms. Mentor and Ms. Lalla-Khan testified that the assessment board discussed, as a group, Ms. Leblanc’s suggestion that they obtain further references. The assessment board determined that they would be “neglectful” if they did not follow up on Ms. Leblanc’s suggestion. Contrary to the explanation provided by Ms. Mentor in her emails to the complainant in April 2008, she testified that the assessment board also sought the two additional references because Ms. Leblanc had suggested they do so.The Tribunal finds that this evidence and the timeframes described above clearly demonstrate that the reason the board sought the additional references was to follow up on Ms. Leblanc’s suggestion.

120Ms. Lalla-Khan testified that the assessment board would not have found it necessary to obtain the additional references if those provided by the complainant had been complete. This testimony is not consistent with the rest of the evidence. Having already decided that they would be neglectful in not checking additional references as suggested by Ms. Leblanc, the Tribunal finds that the board would have sought these references no matter how complete the references provided by the complainant.

121The uncontested testimony of the complainant is that, during the informal discussion on April 2, 2008, he asked Ms. Mentor if Ms. Leblanc had contacted the board concerning his candidacy, but Ms. Mentor refused to answer. As he was not satisfied with this, he sent an email to Ms. Mentor later that day asking how the additional references were selected and who provided the board with the contact information. Ms. Mentor could have simply answered his questions. Instead, she sent the complainant a convoluted and erroneous reply that misled the complainant on the reasons for the additional references and concealed Ms. Leblanc’s role in the assessment process.

122Ms. Mentor wrote to the complainant that the assessment board was required to obtain further references because, in part, all of the references provided by the complainant were not supervisors. She failed to explain why all the references needed to be supervisors, given that the complainant was only asked to provide one supervisor when he was initially asked for references.

123In the same email, Ms. Mentor provided an explanation regarding the sources of the two additional references that is almost impossible to unravel. Ms. Mentor said the board knew of Ms. Ramsbottom (the first referee) but she failed to mention that the board knew of her because Ms. Leblanc, who was not a board member, referred them to her. Ms. Mentor said that the name of the second prior supervisor (the second referee) was obtained from the person who currently holds his position. The complainant believes that the person who currently holds this position is his current supervisor, Ms. Steele, and the referee is Mr. Bezruchkco. However, Ms. Steele confirmed in an email to the complainant that she did not provide the names of any other references to the board. Furthermore, during her testimony at the hearing, Ms. Lalla-Khan said that the board obtained Mr. Bezruchkco’s name from a Ms. Young. There is no evidence that Ms. Young ever had any kind of supervisory relationship with the complainant.

124The complainant sent one more email to Ms. Mentor in an attempt to obtain the names of the sources of the additional references. Ms. Mentor replied to this email informing the complainant that he had already been provided with the requested information and that she would be unable to answer further inquiries from him.

125The members of the assessment board confirmed Ms. Leblanc’s role in the assessment process, for the first time, when they testified under oath at the hearing. More than 20 months had elapsed since the complainant first began his quest to determine the source of the additional references and the rationale for them.

126Section 16 and subsection 29(3) of the PSEA, provide that deputy heads are subject to policies established by the PSC respecting the manner of making appointments. Under the PSC’s Informal Discussion Policy, deputy heads must ensure that persons eliminated from consideration who request an informal discussion have access to sufficient information concerning themselves to understand and discuss the assessment decision. It also states that informal discussions are intended to ensure transparency and communication throughout the appointment process. The evidence summarized above is not consistent with the Policy objectives.

127The evidence presented demonstrates that the complainant was performing well on the judgment qualification, and the assessment process in general, until Ms. Leblanc’s intervention.  Many of the subsequent actions of the assessment board were both improper and inexplicable. With respect to the references, these actions reflect more than mere carelessness, but a deliberate attempt to conceal the evolution of the assessment process from the complainant. In Jacobson v. Chairperson of the Immigration and Refugee Board et al., [2009] PSST 0019, the Tribunal stated that “[...] bad faith is established where an act is incomprehensible or inexplicable, leading to the conclusion that it is incompatible with the intended purpose of the authority granted.”

128In Rajotte v. President Canada Border Services Agency et al., [2009] PSST 0025, the Tribunal found at paragraph 80, that bad faith is established where there is direct or circumstantial evidence of improper intent, bias, lack of impartiality or when an irrational procedure leads to a finding that it is incompatible with the exercise of the delegated manager’s staffing authority. In paragraph 95 of the same decision, the Tribunal found that failure to disclose information subsequent to the filing of a complaint can confirm a finding of bad faith. The Tribunal noted in Rajotte that subsection 16(1) of the Public Service Staffing Tribunal Regulations requires the parties to exchange all relevant information regarding the complaint as soon as possible after the complaint has been filed. In that case, the Tribunal found that the respondent had failed to disclose relevant information pertaining to the existence of a prior acting appointment.

129In this case, the Tribunal finds that the respondent abused its authority by acting in bad faith since the decision to pursue other references was made before receiving information from the complainant’s references. The Tribunal also finds that the respondent continued to act in bad faith by providing inaccurate and misleading communication to the complainant regarding the need to obtain additional references.

Issue II: Was the appointment process tainted by bias?

130The complainant argues that Ms. Lalla-Khan and Ms. Mentor had reporting relationships to Ms. Leblanc and in conveying her disapproval of the complainant to the board, Ms. Leblanc created a reasonable apprehension of bias on the part of the board.

131Furthermore, the PSC’s Assessment Policy states that assessments are to be designed and implemented without bias. One of the key policy requirements contained in the Assessment Policy is that deputy heads must ensure that those responsible for assessment “are able to carry out their roles, responsibilities and duties in a fair and just manner.” 

132The evidence shows that Ms. Leblanc possessed information regarding the complainant that she felt the assessment board should explore. This information concerned labour relations challenges. She brought this information to the attention of Ms. Lalla-Khan who discussed it with Ms. Mentor and Ms. Solomatenko. The members of the assessment board decided that they would be neglectful if they did not pursue additional references as suggested by Ms. Leblanc.

133As the Tribunal found above, the assessment board did not need the complainant’s permission to approach Ms. Ramsbottom or Mr. Bezruchkco for references. While it would be improper for Ms. Leblanc to suggest that the complainant should be penalized for exercising his rights under his collective agreement, there is no evidence regarding what she meant by labour relations challenges. Ms. Leblanc’s reference to labour relations challenges may be interpreted as pejorative, but it does not, by itself, necessarily imply improper or incorrect conduct.

134In Dionne, at paragraph 50, the Tribunal found that the purpose of a reference check is to obtain accurate and relevant information about a candidate, whether positive or negative. In the same decision, at paragraphs 56-57, the Tribunal found that the assessment board, in that case, was unaware that a referee was involved in a grievance filed by the complainant, but even if it had known about the grievance, this would not have precluded the board from obtaining a reference from that referee.

135It would, however, be improper for the assessment board to take the suggestion of Ms. Leblanc and then proceed to seek out information with the intention of eliminating the complainant from the assessment process. Such behaviour would not be consistent with the assessment board’s responsibility to conduct assessments in a fair and just manner.

136The test for reasonable apprehension of bias is well established in jurisprudence. The Tribunal, in Denny, described it as  follows:

[126] [...] The objective test articulated by the Supreme Court in Committee for Justice and Newfoundland Telephone also applies to the circumstances here; 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 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.

137In this case, a reasonable and informed bystander would find that the respondent failed to explain how it arrived at a failing mark on the global assessment for the judgment qualification, given that the references were a secondary tool for this qualification and given that the evidence shows that the complainant passed the simulation and did well on judgment in the interview. The assessment board’s notes on the final scoring sheet for the complainant indicate that the scoring on judgment is based primarily on the references. Finally, Ms. Solomatenko sent an email to Ms. Mentor dated January 22, 2008 which mentions that Ms. Dittmar’s reference provides “No detail on the areas of concern.” This statement was made after Ms. Leblanc made the assessment board aware of her concerns with respect to the complainant, but before the assessment board had interviewed Ms. Ramsbottom or Mr. Bezruchkco.

138The reasonably informed bystander would note that the respondent failed, when asked, to inform the complainant that Ms. Leblanc was the source of the reference from Ms. Ramsbottom and gave inaccurate and misleading information to the complainant regarding the sources of the additional references. He or she would observe that the decision to obtain additional references was made before the assessment board had obtained all of the complainant’s references.The evidence shows that the reference interviews conducted with Ms. Steele (reference provided by complainant) and with Mr. Bezruchkco (additional reference sought by the board) were both conducted on the same date.

139Looking at the process as a whole, a reasonably informed bystander would conclude that one or more of the assessment board members took the suggestion of Ms. Leblanc and then proceeded or reasonably appeared to have proceeded to seek out information with the intention of eliminating the complainant from the assessment process.

140The Tribunal therefore finds that the test set out in Committee for Justice and Newfoundland has been met. A reasonably informed bystander looking at the behaviour of the board in this assessment process could reasonably perceive apprehension of bias on the part of one or more of the assessment board members. Therefore, the duty to act fairly was not met.

Decision

141The Tribunal finds that the respondent abused its authority in the assessment of the complainant which was neither fair nor transparent. The respondent misled the complainant and provided him with inconsistent and erroneous information in an attempt to conceal the source and rationale for the additional references from him. Furthermore, the respondent has not shown a clear link between its application of the assessment methods and its assessment decision. The behaviour of the assessment board created a reasonable apprehension that it was biased in its dealings with the complainant. The Tribunal is, therefore, not satisfied that the complainant’s assessment was fair. The Tribunal finds that the respondent’s egregious failure to observe the appointment values of fairness and transparency set out in the PSEA demonstrates bad faith amounting to abuse of authority.

Corrective Action

142The relevant provisions concerning corrective action are found in subsection 81(1) and section 82 of the PSEA, which read as follows:

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

[...]

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

143Under section 81 of the PSEA, the Tribunal may order revocation of an appointment, and any corrective action it considers appropriate.

144The complainant has requested corrective action based on the Tribunal’s decision in Cameron and Maheux. However, the Federal Court has set aside the corrective measures in Cameron and Maheux on judicial review as it found them to be beyond the scope of the complaint. The complainant has not requested revocation of the appointment in this case.

145However, having heard the evidence in this case, the Tribunal believes that the members of the assessment board would benefit from training in bias free assessment and the application of assessment methods.

146The Tribunal notes that this appointment process was conducted to establish a pool of candidates for Regional Program Advisor positions at the PM-05 group and level in CIC. In this case, the Tribunal believes that if the pool still exists and the complainant remains interested in one of these positions, the appropriate corrective action would be to establish a new assessment board to reassess the complainant.

Order

147The Tribunal orders the respondent, within four weeks of this decision, to determine if the pool for this appointment process still exists and, should the complainant wish to be reassessed, to reassess the complainant by a different assessment board in relation to this appointment process.

Kenneth J. Gibson

Member

Parties of Record

Tribunal File:

2008-0721

Style of Cause:

Ron Ammirante and the Deputy Minister of Citizenship and Immigration et al.

Hearing:

December 16, 17 and 18, 2009
Toronto, Ontario

Date of Reasons:

June 10, 2010

APPEARANCES:

For the complainant:

Lorraine Diaper

For the respondent:

Anne-Marie Duquette