FPSLREB Decisions

Reasons for Decision

Introduction

1 Raynald Gignac holds the position of production chief at the Québec City Production Centre (QPC). He alleges abuse of authority in the appointment process for the QPC regional manager position. He alleges that the assessment board chair was biased against him and did not want him in this management position because of his union activities.

2 The respondent, the Deputy Minister of Public Works and Government Services (PWGSC), submits that there was no abuse of authority and that the reason the complainant did not obtain the position was because he did not meet the essential qualifications. According to the respondent, the complainant’s union activities had no bearing on the decisions taken by the assessment board.

Issues

3 The Tribunal must determine the following issues:

(i) Does reasonable apprehension of bias in a staffing decision constitute abuse of authority?

(ii) Did the respondent abuse its authority in the application of merit by reason of bias against the complainant?

Summary of relevant evidence

4 The QPC is one of three centres that print cheques issued by the federal government.

5 The complainant holds the position of day-shift production chief, at the AS-04 group and level. In that capacity, the complainant sits on the same QPC management committee as the two other production chiefs, Yves Monty and, at the time, Denis Matte. The management assistant and the QPC manager also sit on the committee.

6 The QPC manager position, at the AS-06 group and level, remained vacant for many months after the incumbent left in 2004. Simon Fradette succeeded the latter in January 2006. In the interim, Mr. Monty, Mr. Matte and the complainant held the position on a rotating basis and according to the circumstances.

7 The complainant also served as president of the union local representing most of the QPC workforce. Several years ago, Gilles Gagnon, then regional director for PWGSC, had given the complainant authorization to hold a management position while doubling as a union representative for QPC staff. The complainant had received written confirmation from Mr. Gagnon, indicating that this was “viable” [translation].

8 When Mr. Fradette first took up his duties as QPC manager, Mr. Matte and Mr. Monty told him that they found it difficult to have management meetings with the complainant because of his dual management/union role. The complainant gave Mr. Fradette a copy of Mr. Gagnon’s authorization and expected him to follow up on this at the management committee. However, Mr. Fradette took no position on this matter at subsequent meetings, and the complainant found the situation uncomfortable.

9 The complainant testified that when he was alone with Mr. Fradette, the latter pressured him to give up his union activities. He would tell the complainant: “as you can see, even your colleagues are speaking up about this” [translation] and “your colleagues are uncomfortable; between you and me, you’d be better off dropping your union activities, things would go better with your colleagues” [translation]. According to the complainant, asking a union representative to give up his union activities was an unfair labour practice.

10Mr. Fradette confirmed that during management committee meetings, Mr. Monty did in fact say that he found it difficult to address the complainant in his dual role as union representative and management member. Mr. Fradette explained that he tried to have a consensus on the management committee and that his role was to settle the matter in the absence of consensus. However, he did not want to get involved in comments on the complainant’s dual role, and the meetings carried on just the same.

11Mr. Fradette stated that prior to his arrival at QPC, Mr. Gagnon confirmed to him that he had authorized the complainant to take part in the management committee and to serve as a union representative. Mr. Fradette also acknowledged in his testimony that he had likely alluded to this issue in informal discussions with the complainant due to the sensitive nature of the subject, the complainant having been elected by the unionized staff.

12In July 2006, the complainant accepted the position of regional vice-president in his union while the incumbent was on training. He alerted Mr. Fradette, who told him that he would need to verify whether the complainant could occasionally replace him on an acting basis as QPC manager. Subsequently, Mr. Fradette confirmed that he could.

13In January 2007, Mr. Fradette received an acting appointment as National Director of Printing Services. He is responsible for all three of PWGSC’s production centres and the coordination unit in Ottawa. He decided to combine this position with his former position as QPC manager. He had to travel as part of his new duties, but during his absence no one took over for him as QPC manager on an acting basis.

14An employment opportunity for the position of regional manager of the three production centres was posted on Publiservice in January 2007. The Dartmouth centre position was vacant and was to be staffed once the process had been completed. Staffing of the Quebec City and Winnipeg centre positions was anticipatory, the aim being to create two pools of qualified candidates. The first was a bilingual imperative pool and the second a bilingual non-imperative pool. Bilingual imperative positions were to be staffed first, and once the imperative pool was used up, the non-imperative pool could be used. The objective was to satisfy the operations chiefs’ need to make these positions bilingual. Mr. Gagnon has also expressed this concern to Mr. Fradette.

15Mr. Fradette indicated that he had established the merit criteria for these positions with the help of a human resources advisor. He prepared the written exam with Normand Boudreau of the Dartmouth Production Centre. Together, they did the screening and corrected the written exam. They also sat on the assessment board with Mario Des Alliers, who joined at Mr. Fradette’s request.

16Mr. Fradette explained that he knew Mr. Des Alliers when the latter was a regional comptroller and Mr. Fradette was deputy regional director of CORCAN, a program run by the Correctional Service of Canada. He felt that Mr. Des Alliers had relevant experience for this appointment process because he had experience with the CORCAN production centres; CORCAN operates 10 plants in Quebec’s penitentiaries. They participated together in social activities as part of their work and traveled together to Haiti to explore an employment opportunity with the UN.

17The complainant applied for the appointment process for the bilingual non-imperative pool and was informed on March 7, 2007 that he met the established screening criteria.

18Around April 2007, during a management meeting, the complainant and Mr. Matte stressed the need for a full-time manager at QPC and asked why they no longer held the QPC manager position on an acting basis, as they had before Mr. Fradette’s arrival. Mr. Fradette decided that Mr. Matte and the complainant would take turns holding this acting position.

19On April 30, 2007, the complainant was invited to write an exam to assess whether he possessed the requisite knowledge for this position. On June 14, 2007, the complainant was informed that he had passed the written exam and was invited to an interview on July 16, 2007, in order to assess his knowledge and abilities against the statement of merit criteria.

20During cross-examination, the complainant explained that he had applied for the position but nevertheless had the feeling that Mr. Fradette did not want him on his team, because he openly said that he wanted employees with a university degree. These comments were made publicly but were not directed at any particular individuals or the complainant.

21The complainant had Mr. Matte testify. Mr. Matte explained that he too had understood that he was not the type of worker sought by Mr. Fradette because he did not have a university degree. That is why he did not see the point in applying and decided to take retirement earlier than planned.

Incident preceding the videoconference

22The complainant had Pierre Parent testify. Mr. Parent is acting supply chief for PWGSC in Quebec City. In early July 2007, the complainant and Mr. Parent were having a conversation before a regional labour-management committee videoconference had begun. While not friends, they knew each other and had gone on fishing trips together. They were alone and were talking about their retirement plans. It was then that the complainant told him that he wanted to receive training to do mediation work upon his retirement in four years.

23Mr. Parent asked him how things were going with the appointment process for the QPC manager position he had applied for. The complainant replied that he had passed the written exam but had the feeling that Mr. Fradette did not see him in that position.

24The complainant testified that after this remark, they continued discussing the appointment process. Mr. Fradette arrived and joined the conversation. According to the complainant, Mr. Fradette then told him “if I were in your shoes, I’d concentrate on my job as production chief and the training you want, be it mediation or something else” [translation]. At that point, the complainant asked him if he was aware that in a few weeks he would be participating in an appointment process for which Mr. Fradette would be chairing the assessment board. Mr. Fradette replied that that was not what he meant to say, and that his remark had to do with the mediation course. The complainant became uncomfortable, but the videoconference began.

25Mr. Parent testified that before the videoconference started, he was talking with the complainant about retirement plans and mediation training, and then asked him some questions about the appointment process. He confirmed that while he was asking these questions, Mr. Fradette arrived and told the complainant to concentrate on his managerial job and the mediation training rather than on the appointment process. According to Mr. Parent, the complainant reacted by telling Mr. Fradette that that was an odd thing to say, as he was going to participate in an appointment process the following week. In response, Mr. Fradette told the complainant that that was not what he had meant to say, and that he could “take more time in the coming years to get mediation training because he was going to retire in a few years” [translation].

26Mr. Parent testified that Mr. Fradette’s comment surprised him, because Mr. Fradette sat on an assessment board. According to Mr. Parent, it was inappropriate to tell a candidate that he was not welcome to take part in a process.

27Early in his testimony on this question, Mr. Fradette said that he did not remember exactly what was said, but that he had read the complainant’s allegations “in other proceedings” [translation] concerning the remarks made prior to the videoconference. He testified that he had indeed told the complainant that it was important to concentrate on his work. He explained that he had made this remark because he was worried that the complainant would “leave aside other things” [translation], since the complainant had spoken to him about his interest in mediation training upon his retirement. He indicated that the complainant was involved in many activities: his job, his union activities and a small business undertaking. However, he felt that the complainant was one of the most experienced people in the cheque production area, with over 30 years in that role. He shared the same vision of QPC as the complainant, and his performance was very good.

28During cross-examination, Mr. Fradette indicated that he had arrived when the complainant and Mr. Parent were talking about retirement plans. The complainant was talking about doing mediation upon retirement. Mr. Fradette testified that he told him that it would be “good to concentrate” [translation]. Mr. Fradette explained that he had made this remark because all three of them were part of management, and when one is very busy, a choice has to be made about one’s activities. Mr. Fradette added that he did not recall the complainant’s reaction or response to his remark. He learned of his reaction and response when he read the complainant’s allegations.

Interview and announcement of process results

29The complainant indicated that he had found it difficult to come to the interview following Mr. Fradette’s remark. He explained that Mr. Fradette chaired the assessment board and had given him the clear impression that he did not want him in this job through the inappropriate comment that he made prior to the labour-management videoconference. During the interview, he avoided eye contact with Mr. Fradette and looked instead at the other members of the selection board.

30Mr. Fradette explained that the complainant did not obtain the pass mark of 20 out of 40 on questions 3 and 4, which assessed the ability to develop and implement methods, procedures, processes and action plans, to improve the efficiency and effectiveness of the organization. He testified that the complainant’s answers failed to include all the desired elements and that the score of 7.5 out of 20 was awarded by consensus for questions 3 and 4 respectively.

31The respondent had Mr. Des Alliers testify. Mr. Des Alliers explained that the assessment board members had proceeded with the interviews and graded the candidates’ answers “collaboratively” [translation]. He explained that the candidates could take notes but had to leave them in the room after their interview. However, the board members neither used nor consulted them in preparing the assessments.

32Mr. Des Alliers explained which answers the complainant failed to provide. According to him, the complainant’s response to question 3 was not fleshed out enough; he failed to describe the process and did not indicate whether a follow-up had been carried out. As for question 4, the complainant did not mention the human resources plan and did not assign someone from human resources to this task. Furthermore, he did not come up with a communications plan or set priorities.

33In the weeks that followed the interview, the complainant met with Mr. Fradette at a labour-management meeting on retroactivity/classification grievances. The discussions during this meeting were very heated.

34The complainant took his annual vacation and Mr. Fradette called him during this period to inform him about the results of the interview and his failing grade on an essential qualification. The complainant thought he was joking and asked him the real reason he was calling. Mr. Fradette replied that this was no joke. He asked him whether he wanted a post-interview discussion and the complainant said that he did.

35The complainant testified that he found that this call, made while he was on vacation, was inappropriate, and that the normal procedure should have been followed. His vacation was almost over and he was going to return to the office the following week. He found the call bizarre; he had the impression that Mr. Fradette enjoyed telling him “you didn’t pass” [translation].

36Mr. Fradette testified that he had called the complainant because the policy says to contact unsuccessful candidates as soon as possible. He explained that even though the complainant was on vacation, he felt that it was more courteous and respectful to tell him the news rather than inform him by email. The complainant’s reaction surprised and disappointed him.

37A few days later, on August 23, 2007, the complainant received an email informing him that he did not meet the requirements for the position. Then, once he returned from vacation, he was invited to a post-interview which he attended with Claude Pelletier, his union representative. From the outset, Mr. Fradette told the complainant that “the outcome had nothing to do with the heated discussions we had on the retroactivity and classification grievances” [translation]. The complainant and Mr. Pelletier testified that they were very surprised by this remark.

38Mr. Fradette pointed out the strengths and areas for improvement in relation to the various steps in the process. He indicated that the complainant had had difficulty answering questions 3 and 4, and since he had failed to provide the expected answers, he did not obtain the pass mark. Mr. Fradette suggested that he write down a question’s key words in order to come up with a good answer.

39The complainant replied that he remembered having identified the key words and taken notes in formulating his answer. He did not agree with the assessment and asked Mr. Fradette for a copy of the notes he had taken during the interview so that he could show him. Mr. Fradette replied that he did not have them anymore, because they were no longer necessary after an appointment process. The complainant replied that the person who had given the staffing training that they had both attended told them to keep the notes in the event that there might be complaints, even though points cannot be awarded based on these notes. The complainant testified that Mr. Fradette did not look at him during that reply.

40The complainant then stated: “you’re telling me you don’t have the notes anymore; what am I supposed to do with that?” [translation]. Mr. Fradette answered: “I don’t know” [translation]. The complainant stated that he would file a complaint. He testified that he understood at that point that regardless of his answer, he would not be the person appointed. Question 4 dealt with the subject with which he was most comfortable. According to him, it was easy to fail him in the interview and then, when he asked for a copy of his notes to show how he had actually answered at the interview, inform him that the notes had been destroyed.

41Mr. Fradette testified that the notes taken by the candidates during the interview had all been collected and destroyed. He explained that their usefulness was limited to helping the candidates prepare their answers by identifying key words in the questions. He pointed out that the notes are not part of the assessment during an interview.

42Upon completion of the appointment process, a candidate was appointed to the position. On November 13, 2007, Mr. Gignac filed this complaint of abuse of authority with the Tribunal. The candidate appointed to the position left about eight months after taking up her duties. Mr. Fradette then convened a management committee meeting in which he presented a plan whereby the position would be staffed on an acting, rotating basis by interested production chiefs until someone new could be appointed. The management committee members then informed Mr. Fradette that they preferred that just one person be given the acting position and that it be the complainant. The complainant then took up the position on an acting basis.

43A new appointment process was held for the QPC manager position, but this time the position was bilingual imperative and the complainant did not apply because he did not meet this requirement.

44On February 5, 2008, the complainant also filed an unfair labour practice complaint against his manager under the Public Service Labour Relations Act, S.C. 2003, c. 22 (the PSLRA). The complaint in Gignac v. Fradette, 2009 PSLRB 18, [Gignac (PSLRB)] was dismissed prior to the hearing of the abuse of authority complaint before the Tribunal.

Arguments of the parties

A) Complainant’s arguments

45The complainant submits that Parliament has given managers all the necessary latitude to staff positions in the public service. However, this discretion is not absolute and must be exercised within a staffing values framework. These values include transparency, non-partisanship and access.

46The complainant submits that these values were not adhered to in this staffing process, because it was clear that Mr. Fradette did not see him in this position. If he felt biased, he should have withdrawn from the assessment board. According to the complainant, Mr. Fradette’s comments and actions suggest or create the perception that he was not unbiased. At the very least, there is an appearance of bias and, in this regard, there was abuse of authority.

47Further, the complainant argues that the other board members were not independent and were friends of Mr. Fradette. According to him, the fact that the assessment board members’ notes were so nice and clear casts suspicion on them.

48The complainant is requesting that as a corrective action, a lump sum be paid to him equivalent to the difference in compensation between the QPC manager position (AS-06) and his substantive position (AS-04). This sum would be paid to him as compensation for the abuse of authority. He is not requesting that the appointment be revoked.

B) Respondent’s arguments

49The respondent submits that the evidence fails to establish that Mr. Fradette tried to prevent the complainant from being appointed or that he was biased against him. The complainant did not meet certain essential qualifications for this position, and that is why he could not be appointed. The respondent does not dispute that the complainant has recourse against an abuse of authority in the application of merit under section 77(1)(a); however, the respondent submits that it is paradoxical that the complainant is not contesting the assessment of his qualifications.

50The respondent argues that there is no direct link between the allegation of bias and the facts. According to the respondent, an appearance of bias must be linked to the process that is the subject of the complaint. The respondent submits that bias against one of the candidates is not grounds for withdrawal. Rather, the test for bias lies in the differential treatment of the candidates.

51As for the incident prior to the videoconference, Mr. Fradette does not recall exactly what was said, but did not deny it. Mr. Parent also testified that it happened quickly, and that it is difficult to remember the exact words that were spoken. According to the respondent, the body of evidence, and not just this element, must be reviewed to establish whether there was bias.

52The respondent submits that the facts are the same as those in the unfair labour practice complaint that was dismissed, and the perception of bias on the part of Mr. Fradette was not demonstrated in that complaint.

53As for the corrective action requested, the respondent submits that the Tribunal can award monetary benefits only in the circumstances provided for in section 81(2). Furthermore, according to section 82, the complainant may not be appointed to a position; what he is requesting would amount to a retroactive appointment for duties that he did not perform.

C) Public Service Commission’s arguments

54The Public Service Commission (PSC) submits that under the Public Service Employment Act (the PSEA)deputy heads are subject to the PSC’s policies. The values identified in the PSEA are set out in these policies. According to the assessment policy, the person responsible for assessment must not be in a conflict of interest, nor must he or she be or appear to be biased. Evidence of this appearance of bias must be established by facts and have a connection with the process. This appearance of bias must be reflected in the process.

55As for corrective action, the PSC submits that the goal of this action is to correct deficiencies in the appointment process. The monetary damages claimed are not in the nature of a corrective action.

Relevant guidelines and legislation

56The complaint was submitted pursuant to section 77(1)(a) of the PSEA , which reads as follows:

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);

57 Section 77(1)(a) makes reference to section 30(2) of the PSEA , which 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

(b) the Commission has regard to

(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,

(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and

(iii) any current or future needs of the organization that may be identified by the deputy head.

58Section 16 and section 29(3) of the PSEA state that deputy heads are subject to the policies established by the PSC:

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.

59The PSC assessment policy reads as follows:

In addition to being accountable for respecting the policy statement, deputy heads must:
[...]

• 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;

Analysis

Issue I: Does reasonable apprehension of biasin a staffing decision constitute abuse of authority?

60Basically, the complainant alleges that Mr. Fradette’s conduct and remarks gave rise to a reasonable apprehension of bias, and that in his opinion, this constitutes abuse of authority as set out in section 77(1)(a) of the PSEA.

61For greater certainty, section 2(4) specifically includes bad faith in the definition of abuse of authority. The courts have traditionally interpreted bad faith as the existence of improper or dishonest intent, which includes bias. Today, the meaning that case law ascribes to bad faith is broader and does not require proof of improper intent when the facts reveal serious carelessness or recklessness. See Finne y v. Barreau du Québec, 2004 SCC 36, at paras. 37 and 39; René Dussault and Louis Borgeat, Traité de droit administratif, 2^e éd., Québec, PUL, 1990, volume 3, p. 485. See also these Tribunal decisions:Cameron and Maheux v. Deputy Head of Service Canada, 2008 PSST 0016; Chiasson v. Deputy Minister of Canadian Heritage, 2008 PSST 0027; Burke v. Deputy Minister of National Defence, 2009 PSST 0003.

62The courts have also broadened the meaning ascribed to bias and formulated a specific test for establishing the concept. It is not necessary to determine that a person is biased, but rather to objectively view the circumstances to determine whether there is a reasonable apprehension that this person is acting in a biased manner. The test to establish reasonable apprehension of bias does not require evidence of improper intent; rather, it focuses on the duty of fairness of public decision makers when making decisions affecting a person’s rights and privileges. See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 45 to 47; Dunsmuir v. New Brunswick, 2008 CSC 9, at para. 79; and David Philip Jones and Anne S. de Villars, Principles of Administrative Law, Toronto, Thomson Carswell, 2009, p. 396 and onwards (Jones, “Administrative Law”).

63Does the test for reasonable apprehension of bias, formulated according to this case law, apply to staffing decisions, and does this prove bad faith and thus constitute abuse of authority?

a) Is there a duty to act in an unbiased manner and without reasonable apprehension of bias in appointment processes?

64There is a well-established duty to act fairly in all administrative decisions affecting an individual’s rights, privileges and interests. The courts have ruled that fairness requires that decision makers be impartial and also be perceived as being impartial. Thus, inBaker, the Supreme Court of Canada explains that this duty of fairness extends to administrative decisions, with consideration given to the context of the decision. In paragraph 28, the Court states:

28(...)The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.

65The fairness requirement varies, and is based on an assessment of the context of the particular statute and rights in question. Certain factors are used to establish the scope of its application to the subject in question. These include the nature of the decision, its effects on the person affected and the legislative context. The fairness requirement should therefore be examined within the context of the decisions taken under the PSEA and particularly those relating to staffing. See Jones, “Administrative Law,” at p. 237 and 238.

66Staffing decisions involving such things as appointment to term or indeterminate positions can and do affect the career and earnings of the people involved, and thus impact on their lives. Career advancement opportunities can be rare, particularly in cutting-edge fields. When an appointment is revoked or a person is laid off, the impact is greater still, because the person is losing out on a position or losing his or her job. Thus, these decisions are the type of administrative decisions referred to by the Court in Baker.

67The legislative context for a staffing complaint is one where Parliament has specifically indicated a duty of fairness in employment practices. The Preamble to the PSEA identifies fair and transparent employment practices as key values characterizing the public service. These employment practices are mentioned in the PSEA. They include merit, qualification standards, notification of persons under consideration and appointed, and so on. There is recourse against abuse of authority in the exercise of discretionary authority for staffing matters.

68In addition, the PSC has developed policies on how to make appointments. When it comes to assessment, these policies require deputy heads to ensure that those responsible for assessment act fairly and are not in a conflict of interest. These policies cover employment practices that must be followed by deputy heads, as indicated in sections 16 and 29(3) of the PSEA. See Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0024, at para. 69.

69These policies and the accompanying guide also create legitimate expectations on the part of the candidates that they will be treated fairly and that the appointment process will not only be impartial, but also be perceived as such. See Gariepy v. Canada, [1989] 2 FC 353 at paras. 17-8 (Trial Div.) (QL).

70Indeed, the policies state that persons responsible for assessment must act fairly. The Guide to Implementing the Assessment Policy explains the importance of the process being fair and being perceived as such. It states that assessment board members must minimize any appearance of bias:

Since the integrity of an assessment process could be the subject of review, it is important not only that it be fair but that it also be seen to be fair. For example, assessment board members should make reasonable efforts to minimize any appearance of bias in the process and the assessment board members should not let personal favouritism influence the outcome of the appointment process.

71The Tribunal finds that for all these reasons, those responsible for assessment in an appointment process have a duty to carry out an assessment that is unbiased and that does not generate a reasonable apprehension of bias. Furthermore, if their conduct gives rise to a reasonable apprehension of bias, the Tribunal can consider that this represents bad faith, within the meaning of section 2(4) of the PSEA, and constitutes abuse of authority.

b) What is the applicable test for determining whether there is a reasonable apprehension of bias in a staffing decision?

72A test was established by the courts to determine whether there is reasonable apprehension of bias. It consists in determining whether a relatively informed bystander could reasonably perceive bias on the part of an adjudicator. It is not enough to suspect or assume bias; it must be real, likely or reasonably evident. See Jones, Administrative Law, pages 237 to 238, 395 and onwards;Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, page 636.

73The Tribunal finds that this test applies to abuse of authority complaints in staffing matters. It is particularly useful in analysing a complaint, because it is flexible and reasonable, and makes it possible to take into account the context of a staffing decision. The decision in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394, explains it thus:

[...] [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 [the adjudicator], whether consciously or unconsciously, would not decide fairly?”

74For all these reasons, the Tribunal finds that a reasonable apprehension of bias in a staffing decision demonstrates bad faith, which constitutes abuse of authority. The Tribunal also finds that the test for whether a reasonable apprehension of bias exists, developed in case law, applies to the analysis of a complaint. Where bias is alleged, the following test can be used to analyse this allegation, while taking into account the circumstances surrounding it: If a relatively informed bystander can reasonably perceive bias on the part of one or more persons responsible for assessment, the Tribunal can conclude that abuse of authority exists.

Issue II:Did the respondent abuse its authority in the application of merit by reason of bias against the complainant?

75The complainant alleges that Mr. Fradette was biased or appeared to be biased in his comments and the way he acted, and that there was therefore abuse of authority. The respondent submits that the facts are the same as those in the Gignac (PSLRB) decision, where the unfair labour practice complaint was dismissed. The Tribunal finds that the issue is different in a complaint of abuse of authority under the PSEA, where separate and independent evidence is presented and the parties are different. See Boulanger v. Commissioner of the Correctional Service of Canada, 2008 PSST 0031. Furthermore, the events in this case predate those that are at play in the complaint of unfair labour practice. Indeed, the Gignac (PSLRB) decision explains that it does not deal with the events that transpired prior to November 5, 2007, that is, the 90 days before the complaint was made on February 5, 2008, as provided for in section 190(2) of the PSLRA.

a) Which version of the comments preceding the start of the labour-management videoconference should we accept?

76The complainant’s evidence is based on events and comments involving Mr. Fradette before and after the interview. There was one event, namely the exchange preceding the videoconference, where there are two different versions of what was said and, above all, of the context in which the remark was made. This event is important, because the remark is directly related to the appointment process.

77Mr. Parent and the complainant testified that they were talking about the appointment process when Mr. Fradette told the complainant that he should instead concentrate on his work and on the mediation courses. But according to Mr. Fradette, they were talking about the complainant’s retirement plans of taking mediation training.

78The Tribunal must examine the witnesses’ credibility in the face of this contradictory evidence in order to determine which of these two versions is most credible. The test for making this determination is well established in case law, as indicated in the decision in Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007, at para. 45. This test is explained on page 357 of the decision in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case 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 in those conditions.

79A practical and informed person would readily consider Mr. Fradette’s version as unlikely. This person would consider the version put forward by Mr. Parent and the complainant as more reasonable on the balance of probabilities.

80Mr. Fradette testified that he did not recall exactly what had been said, but that he had read the allegations brought by the complainant. He did not remember the complainant reacting to his comment, and learned of this in reading the allegations.

81According to Mr. Fradette, the complainant was the person with the most experience in cheque production, and his performance was good. The only time he told the complainant that he was worried that he was too busy was when the complainant talked about his retirement plans. This version is unlikely.

82Indeed, it is difficult to understand why Mr. Fradette would have told the complainant that he should concentrate on his work when he was talking about his plans to do mediation once he retired in four years. Mr. Fradette was already aware of these plans and had discussed them with the complainant. He was entering the room and had no reason to make such a statement.

83By contrast, the testimony given by Mr. Parent and the complainant is consistent and more likely. The complainant had just told Mr. Parent that he felt that Mr. Fradette did not want him in this job. They continued talking about the process, and Mr. Fradette entered the room. It was when Mr. Parent asked the complainant when the interview would be taking place that Mr. Fradette interjected, telling the complainant that if he was in his shoes, he would concentrate on his job as manager. The comment made by Mr. Fradette is related to the process, but denotes annoyance, a degree of aggressiveness. It was made just before a labour-management meeting where the complainant had to act as a union representative.

84For all these reasons, the Tribunal considers Mr. Fradette’s version as unlikely and sees the complainant’s version as reasonable on the balance of probabilities.

b) Did Mr. Fradette’s conduct give rise to a reasonable apprehension of bias?

85The test for reasonable apprehension of bias must now be applied to the circumstances surrounding this complaint. Could a relatively informed bystander assessing all the evidence reasonably perceive bias on Mr. Fradette’s part?

86This bystander would readily note that Mr. Fradette made a remark directly related to the appointment process right before the videoconference and that his conduct did not show the impartiality required of an assessment board chair, or even a member. While the complainant and Mr. Parent were discussing the appointment process, Mr. Fradette clearly indicated to the complainant by his comment that he would be better off devoting his energies to his work rather than to the appointment process. His remark conveyed a negative attitude toward the complainant’s participation in the process in which Mr. Fradette would be acting as assessment board chair. It indicates that Mr. Fradette had already decided that the complainant would not be appointed, even before the appointment process had run its course. On the basis of this comment, this bystander could definitely perceive Mr. Fradette’s bias against the complainant in the appointment process.

87The comment denotes annoyance, and a degree of aggressiveness is clear. It was made right before a labour-management meeting. Mr. Parent and the complainant testified that it was his management work that Mr. Fradette told the complainant to concentrate on. These meetings could be stormy, as was the case with the labour-management meeting that followed a few weeks later.

88Moreover, Mr. Fradette knew that he was not perceived as impartial by the complainant when the latter asked him if he realized that he would be chairing the assessment board before which he would be going. It was not enough for Mr. Fradette to state that this was not what he had meant to say. Mr. Fradette should have acted in such a way as to minimize the appearance of bias, as indicated by the Guide to Implementing the Assessment Policy. In the circumstances, he would have been wise to discuss with a human resources adviser what measures to take, such as waiving participation in the interview and the assessment board’s discussions about the complainant.

89For all these reasons, the Tribunal finds that Mr. Fradette’s conduct and comments prior to the videoconference gave rise to a reasonable apprehension of bias against the complainant, which constitutes abuse of authority. This unreasonable conduct was unfair to the complainant and tainted the entire assessment process.

c) Other incidents

90The events preceding or following the videoconference can also raise doubts or questions, and they support the conclusion that Mr. Fradette’s conduct and comments prior to the videoconference gave rise to a reasonable apprehension of bias.

91Mr. Fradette openly expressed his preference for employees with a university education, which could suggest that his mind was already made up about employees without one. In light of this, Mr. Matte opted not to apply for the process in question, because he felt that Mr. Fradette did not want him on his team. The complainant expressed the same reservations to Mr. Parent.

92Mr. Fradette’s conduct demonstrated that he was not comfortable with the complainant being a union representative while at the same time sitting on the management committee. Mr. Gagnon had informed Mr. Fradette prior to his arrival at QPC that he had consented to the complainant filling both roles at the same time. However, Mr. Fradette did not indicate this to Mr. Matte, Mr. Monty or even the complainant. On more than one occasion, Mr. Fradette discussed the subject with the complainant when they were alone, asking him to cease his union activities.

93Following Mr. Fradette’s arrival, the complainant had fewer opportunities to occupy the position of acting QPC manager. Changes in the complainant’s union role possibly cast doubt on whether he would continue holding this acting position. The comment made prior to the videoconference can be explained by Mr. Fradette’s discomfort with the complainant holding the acting or indeterminate position of QPC manager because of his union activities.

94Following the interview, Mr. Fradette contacted the complainant, who was off on vacation, to tell him that he had failed. It seems inappropriate to give the complainant this bad news and disturb him during his holidays, especially when he was going to return to the office just a few days later.

95During the informal discussion, Mr. Fradette told the complainant that the appointment process outcome had nothing to do with the very heated discussions that had taken place about the grievances. This comment was awkward and led the complainant to draw a link between the two events rather than consider them distinct from each other.

96Lastly, telling the complainant that his notes were not kept, when the complainant wanted to use those notes to challenge the marking of his answers, adds to the perception of bias.

97On this last point, the Tribunal would like to issue a caution similar to that issued in Zhao v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0030. Any materials used for assessment, including candidates’ notes, should always be retained. If candidates’ notes are not used for the assessment, it is still useful to retain them for purposes of informal discussion or for recourse before the Tribunal. Had the complainant’s notes been available in this complaint, this issue could have been resolved.

Decision

98For all these reasons, the complaint of abuse of authority is substantiated.

Corrective action

99The complainant is requesting that as a corrective action, a lump sum be paid to him equivalent to the difference in wages between the QPC manager position (AS-06) and his substantive position (AS-04).

100The relevant provisions concerning corrective action are found in sections 80, 81 and 82 of the PSEA, and read as follows:

80.In considering whether a complaint under section 77 is substantiated, the Tribunal may interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value.

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.

(2) Corrective action taken under subsection (1) may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.

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

101The complainant has neither explained nor justified the basis of his claim for the lump sum in question. He has produced no evidence of actual or moral damage linked to the abuse of authority that occurred.

102If the complainant is claiming this sum as punitive or exemplary damages, the Tribunal finds that it does not have the authority to award it. According to the case law, the Tribunal can order punitive damages only if the enabling legislation permits it. See Chénier v. Treasury Board (Solicitor General Canada – Correctional Service), 2003 PSLRB 27; Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085; Canada (Attorney General) v. Hester, [1997] 2 F.C. 706 (Trial Div.). The PSEA does not specifically state that the Tribunal can award punitive damages. But according to the provisions of section 81(2) of the PSEA, the Tribunal may award special compensation of up to $20,000 where it finds that a discriminatory practice within the meaning of the Canadian Human Rights Act, R.S., c. H-6, was engaged in and that this practice was wilful or reckless pursuant to section 53(3) of the Act. This subsection cannot apply to the case before us, because there is no allegation or proof that a discriminatory practice was engaged in.

103The Tribunal also considers that revocation is not appropriate. The Tribunal finds, therefore, that in the circumstances surrounding this complaint, its decision that Mr. Fradette abused the discretionary authority delegated to him is sufficient and constitutes the only appropriate corrective action.

Guy Giguère

Chairperson

Parties of Record

Tribunal File:

2007-0589

Style of Cause:

Raynald Gignac and the Deputy Minister of Public Works and Government Services

Hearing:

February 24, 25 and 26, 2009
Quebec, Quebec

Date of Reasons:

August 9, 2010

APPEARANCES:

For the complainant:

Bernard Gagné

For the respondent:

Martin Desmeules

For the Public
Service Commission:

Lili Ste-Marie