FPSLREB Decisions

Reasons for Decision

Introduction

1 Jane Bain, the complainant, was a candidate in an internal advertised appointment process held by Natural Resources Canada (NRCan) to staff the position of Deputy Director General, Business Planning and Coordination Directorate (DDG - BPC), a position at the CO-04 group and level at CanmetENERGY Research - Ottawa Centre. She was assessed and found qualified but another qualified candidate, Geoffrey Murphy, was appointed to the position.

2 In her complaint to the Public Service Staffing Tribunal (the Tribunal), she raises a number of allegations of abuse of authority, including personal favouritism towards the appointee. She also raises an allegation of reasonable apprehension of bias by one of the board members because he is a personal friend of the appointee.

3 The respondent, the Deputy Minister of NRCan, denies any abuse of authority.

Background

4 The complainant joined NRCan in 1984 and has been Manager, Technology Innovation (PC-04) with the BPC Directorate since 1995. As for the appointee, he has been employed at NRCan since 1992 and became Manager, Business Development Office (CO-03), BPC Directorate, in 2002. The complainant and the appointee's positions report to the position at issue, which became vacant in 2006.

5 Between December 2006 and July 2007, then from August 2007 to March 2008, the complainant and Mr. Murphy each acted in the position at issue, for successive alternating periods of approximately four months each. In the first set of acting appointments, the position was classified at the SE-REM-02 group and level. In the second set, it was classified as PC-05.

6 In the spring of 2008, the position was classified at the CO-04 group and level and an appointment process was initiated to staff it on an indeterminate basis.

7 On May 15, 2008, the respondent published a Job Opportunity Advertisement (JOA) on Publiservice for this position, with a closing date of June 5, 2008. It published a second JOA on June 11, 2008, with a closing date of June 18, 2008, when management realized that the complainant, who was on language training at the time, had not applied when the process was first advertised. The complainant submitted her application on June 18, 2008.

8 The appointment process was open to "Employees of the Public Service occupying a position in the National Capital Region". Thirty-six people applied, including ten NRCan employees.

9 The assessment board (the board) was composed of John Marrone (its chair), Director General, CANMET Energy Technology Centre Ottawa (CETC), now called CanmetENERGY Research – Ottawa Centre (hereafter Canmet); Martin Aubé, then Executive Director, CETC; and Dr. Safaa Fouda, retired NRCan research scientist and former Deputy Director General – Operations of CETC.

10 Candidates were screened on the basis of the essential qualifications of education, experience, and official language proficiency. Seven candidates were screened in, including the complainant and Mr. Murphy.

11 The essential knowledge, abilities and personal suitability qualifications were assessed by means of interview questions, a presentation, a written communication exercise and reference checks. Prior to the interview, candidates had been asked to prepare a 15-minute PowerPoint presentation to be delivered at the time of the interview. Candidates were given the interview questions 30 minutes prior to the interview. A 30-minute writing exercise followed the interview. Finally, reference checks were conducted.

12 The interviews and presentations were scheduled for October 16 and 17, 2008. Candidates were notified of their interview date by email one week before, on October 8 and 9, 2008. This email provided the following instructions:

As part of you[r] interview we are asking you to prepare a 10 slide, 15 minute (maximum) power point presentation using the template provided below. The presentation is to be delivered at a trade mission in China about a new Canadian technology of your choice showing the advantages and unique features of the technology and options for the technology transfer.
[...]
Please bring three hard copies of your deck with you for the board members.

(Emphasis added)

13 The appointee's interview was subsequently rescheduled from October 17, 2008, to October 28, 2008, for reasons which will be discussed below.

14 The board rated each candidate by consensus on the day of the interview. Dr. Fouda collected the results and prepared a summary sheet for each candidate.

15 Dr. Fouda conducted the reference checks with referees named by each candidate, by reading them prepared questions and noting their answers. She explained her findings to the other board members at a subsequent meeting. Final marks for references were assigned by consensus.

16 Upon conclusion of the assessment, the board determined that three candidates met all the essential qualifications: Mr. Murphy, another candidate and the complainant. They ranked first, second and third, respectively.

17 On December 29, 2008, the respondent issued a Notification of Appointment or Proposal of Appointment, for the appointment of Mr. Murphy to the position.

18 On January 13, 2009, the complainant filed a complaint with the Tribunal, pursuant to s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA).

Issues

19 The Tribunal must determine the following issues:

1. Did the manner in which the selection board assessed the appointee's presentation constitute abuse of authority under section 77 of the PSEA?
2. Did the respondent abuse its authority by reason of personal favouritism towards the appointee?
3. Does the personal friendship between board member Mr. Aubé and the appointee give rise to a reasonable apprehension of bias?

Analysis

20 This complaint was filed under s. 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);

[...]

21 Abuse of authority is not defined in the PSEA but s. 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."

22 According to s. 30(2), an appointment is made on the basis of merit when 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.

23 The board's discretion to choose and use assessment tools is found at s. 36 of the PSEA.

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).

24 As the Tribunal's jurisprudence has established, the complainant has the burden to prove, on a balance of probabilities, that there was an abuse of authority in the appointment process (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 and Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007).

Issue I:  Did the manner in which the selection board assessed the appointee's presentation constitute abuse of authority under section 77 of the PSEA?

25 The complainant states that contrary to instructions that candidates were to prepare and give a presentation, the appointee did not prepare his own presentation but used, except for his cover and last pages, a copyrighted presentation prepared by a company, not himself. As a result, it cannot be said that the board assessed his grammar and his ability to communicate in writing, or his ability to prepare a presentation, its visual aspect and its logical flow.

26 The board had seen fit to provide candidates with clear and brief instructions. They were to prepare a ten-slide, 15-minute (maximum) PowerPoint presentation, to be delivered at a trade mission in China about a new Canadian technology of their choice showing the advantages and unique features of the technology and options for the technology transfer.

27 The presentations were not prepared under controlled conditions and the instructions to candidates did not specify where and how they were to do their research and obtain their material. According to Dr. Fouda, this was not something in which the board had an interest. Mr. Marrone stated that the board did not care what material was used, just how it was presented. The candidates were not asked to provide the source of their presentation and the board did not want to assess how they had prepared it since it obviously was not present during its preparation.

28 Dr. Fouda testified that candidates were to assume they were at a trade mission in a foreign country and were presenting a technology to be implemented there. She explained that the board was looking for elements such as how well the candidate could influence the audience to pursue a partnership for the implementation or the commercialization of the technology, and so on. The board looked at flow, logic, and persuasion; the "marketing pitch"; whether the presentation was aimed at the right audience; and whether the candidate was making contact and was attuned with the audience. The board was also looking at grammar and spelling.

29 Mr. Marrone explained that the complainant lost points for her presentation because she did not deliver it as if she were presenting to a Chinese audience: she spent much time describing China (a Chinese audience would already know the country), speaking of the advantages of the technology to Canada (a Chinese audience would not care about this), and using acronyms that would not be known in China. She provided many facts but made no recommendation. Her approach was very matter - of - fact, almost as if she were reading to the board instead of presenting to an audience.

30 Asked to explain why most of Mr. Murphy's slides had the words "confidential" or "MENOVA" written on them, Dr. Fouda said that it is not unusual to see only Canmet's or a partner's name on such a document. An agreement specifies who will market a product. It did not matter whether a presentation was prepared by Canmet or by a private company. Everything depended on how the product was marketed.

31 As for Mr. Marrone, he acknowledged that all the pages except two in the appointee's presentation were marked "all rights reserved", "Power-spar.com" and "MENOVA Energy". He agreed that all these pages were "most likely" not prepared by Mr. Murphy but were taken from Menova company material. He insisted that Mr. Murphy prepared his presentation himself. He mined the Internet, used images, spoke to these images, and showed how the images spoke to the audience. The board did not care what material was used, just how it was presented.

32 He stated that the board gave marks for the visual aspect of the presentations and acknowledged that Mr. Murphy had not created these images. Asked how the board could assess grammar, spelling and visual aspect if the candidate did not prepare the slides himself but obtained them from a website, Mr. Marrone replied that this was not a university test. The slides were Mr. Murphy's and what mattered was how he had presented them.

33 The appointee did not testify to explain whether his presentation came from a copyrighted presentation or not.

34 After carefully reviewing the evidence, the Tribunal finds that the majority of the slides in the appointee's preparation come from copyrighted, confidential material prepared by, or for, a company called MENOVA Energy Inc., and inserted in PowerPoint template slides. The slides have been given titles such as "MENOVA Energy – Power-Spar Systems", "The product", "Comparisons", "Mounting Options", etc. On all slides, the "CETC Energy Technology Centre", "Natural Resources Canada" and government of Canada logos have been inserted. Only the cover page and the last page are not annotated "© 2008 All Rights Reserved Menova Energy Inc. CONFIDENTIAL" and such.

35 The Tribunal notes that Mr. Marrone acknowledged, during his testimony, that most of Mr. Murphy's slides came from a copyrighted source and bore confidential markings. He admitted that the appointee did not prepare the slides himself. Dr. Fouda was somewhat vague in answering directly whether the appointee had prepared the presentation himself.

36 Therefore, in the Tribunal's view, there is clear evidence that during his interview, the appointee used a presentation largely constructed with copyrighted material. Similarly, the Tribunal finds it improbable that the board did not notice, at the interview or afterwards, the copyright and confidential markings on the paper copy of the slides the appointee submitted.

37 The Tribunal must now examine whether the fact that the appointee used copyrighted material from a third party has a bearing on his evaluation. Both Mr. Marrone and Dr. Fouda argue that it does not. The Tribunal does not share this view.

38 Most of the slides are marked as being confidential and it is therefore more probable than not that the appointee had access to them through his work and not through "mining the Internet". Rather, it is likely that he obtained them from NRCan files to which he had access through his position at the Business Development Office of Canmet.

39 The Canadian Oxford Dictionary, 2004 edition, defines "prepare" as follows: "verb 1 transitive make or get ready for use, consideration, etc. 2 transitive make ready or assemble (food, a meal, etc.) for eating [...]"

40 This ordinary dictionary definition of the word "prepare" means that the individual who prepares a presentation makes it "ready for use". Copyrighted material used for similar purposes, however, is already "made ready for use" and therefore, it is already prepared in the ordinary meaning of the word.

41 The requirement of preparation entails creating something and not simply adopting a presentation that is in large part taken from a presentation prepared by someone else.

42 The copyright notations are visible and the evidence before the Tribunal is that Mr. Marrone, the board chair, was aware of this. As for other third party symbols, both Dr. Fouda and Mr. Marrone acknowledged their presence. Given the obvious placement of these symbols on the presentation, it is likely that either during the interview or during the assessment process, the fact that the presentation came directly from third party sources should have come to the board's attention. Once the board was aware of this, it ought to have demonstrated concern that the appointee had drawn on copyrighted and confidential material, and potentially, material to which others could not have access.

43 Mr. Murphy's use of copyrighted material prepared by a third party gives rise to several issues. According to the Assessment Guide, the presentation and the written exercise assessed the "Ability to communicate (verbally and in writing) and to make presentations to senior government or private sector officials". Since he did not "prepare" his presentation, it is possible that he has not met the requirements of the statement of merit criteria with regard to the demonstration of the ability to communicate in writing.

44 In Tibbs, the Tribunal identified five general criteria for assessing whether a delegated manager's discretion amounts to abuse of authority. They include when a delegate acts on inadequate material and when the exercise of discretion leads to an improper result.

45 In this case, the decision to accept a presentation that was not prepared by the appointee clearly goes against the stated expectation that each candidate would prepare his or her own presentation. The Tribunal finds that in exercising its discretion to assess Mr. Murphy on this basis, the board made its decision without adequate material. The positive assessment of a presentation that the appointee did not prepare himself leads to an improper result.

46 Although the board chose a subject and a country that candidates could research on the Internet, the Tribunal concludes that it is unlikely that the appointee found the copyrighted, confidential material he used on the Internet as such material is not publicly distributed. Nevertheless, even if the appointee had accessed the information through the Internet, the evidence before the Tribunal shows that he used the slides of a third party and did not prepare his presentation.

47 The Tribunal acknowledges that the presentations were not prepared under controlled conditions and the instructions to candidates did not specify where and how they were to do their research and obtain their material. However, it is not reasonable for the board not to have had any concern or interest in what material was used, as Mr. Marrone and Dr. Fouda testified.

48 These statements contradict the Criteria for Evaluation of this ability that the board had chosen to adopt to assess the merit criteria. They were outlined in the Assessment Guide:

Clarity: Communication is clear, direct and easily understood; it expresses what is meant by the individual.

Conciseness: Communication is brief and to the point.

Logic: Ideas are logically developed and presented in reasonable sequence.

Completeness: Contains all essential information (i.e. purpose, dues date, where to go for more info, appropriate salutations, headings, date, etc.).

Usage: Communication is grammatically correct, using appropriate vocabulary (word choice).

Written communication: Minimal errors, if any, in punctuation and spelling.

Verbal communication will be assessed during the interview.

49 The Tribunal finds that issues such as clarity, usage of grammatically correct communication, minimal errors in written communication, logic and conciseness are not simply linked to the oral delivery of a presentation but are also tied to the actual preparation. It is noteworthy that the board found that Mr. Murphy's presentation flowed logically and used the right grammar. Board remarks indicate: "clear", "very visual", "tailored to audience", "personality". However, it remains impossible to assess what part of the appointee's evaluation in this area could be attributed to what he prepared himself and what could be attributed to the copyrighted product he adopted for most of the slides in his presentation.

50 Although the board was satisfied that the appointee possessed the ability to communicate verbally and in writing and to make presentations to senior government or private sector officials, the fact remains that he presented material he did not prepare himself.

51 It is one thing to give candidates permission to conduct research in order to gather materiel that can be used to build a preparation. It is another to give a candidate a favourable assessment for a presentation that the board knew, or should have known, had been prepared by someone other than the candidate. While an appointment process may not represent an academic setting, this does not mean that a board should accept copyrighted work professionally prepared by a third party. Appointment processes do not necessarily reflect the rigour of an academic process, but they do demand rigour and must adhere to the values in the PSEA to uphold merit.

52 The PSEA requires that appointments be made on the basis of merit and s. 30(2), specifies that an appointment is made on the basis of merit when the person to be appointed meets the essential qualifications. Appointing a person that does not meet the essential qualifications is not an appointment based on merit. Making an appointment that is not based on merit is an abuse of authority (see Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 0044 at para. 38; and Patton v. Deputy Minister of National Defence, 2011 PSST 0008 at para. 35).

53 Accordingly, the Tribunal finds that the assessment board abused its discretion by acting on inadequate material and failing to consider relevant matters when it concluded that the appointee met the essential qualification being assessed. This led to an improper result, namely finding this candidate fully qualified. These abuses of discretion constitute an abuse of authority.

Issue II : Did the respondent abuse its authority by reason of personal favouritism toward the appointee?

54 The complainant alleges that personal favouritism was a factor at various stages preceding and during the appointment process.

55 Section 2(4) of the PSEA clearly specifies that personal favouritism constitutes abuse of authority. The Tribunal has established that evidence of personal favouritism can be either direct or circumstantial (see Glasgow at para. 44, and Jacobsen v. Deputy Minister of Environment Canada, 2009 PSST 0008 at para. 54).

56 For the reasons outlined below, the Tribunal has concluded that the following facts do not give rise to a finding that personal favouritism was a factor in this process.

• The classification of the position at issue at the CO-04 group and level;
• The choice of area of selection;
• The decision to screen the appointee into the process;
• The postponement of the appointee's interview and presentation;
• The choice of the country for the presentation;
• The manner in which the references were assessed; and
• Statements made by Mr. Marrone at his informal discussion with candidate Joseph Rubino.

The classification of the position

57 Acknowledging that the Tribunal does not have jurisdiction to consider whether a position is classified appropriately, the complainant argues that the Tribunal should nevertheless consider the significance, in relation to facts and events, of the changes in its classification over the years. She contends that since its creation in 1995, management has always classified this position according to the group and level of the employee it intended to appoint to it.

58 She alleges that it was to favour Mr. Murphy personally that the position was classified as a CO-04, as he would not have met the education requirements of the Scientific Research (SE) or Physical Science (PC) occupational groups.

59 It is not for the Tribunal to review management's decisions pertaining to the classification of positions. However, in view of the complainant's allegation of personal favoritism towards Mr. Murphy, the Tribunal examined the events immediately leading to the establishment of the CO-04 position staffed in this appointment process (see for example Rinn).

60 Mr. Marrone gave a detailed explanation of the evolution in classification of the position. He had initially sought authorization to establish positions at the EX-02 group and level but by the time approval was received for only one EX-01 position, marketing efforts had become the focus of the business office. Thus the decision was made to classify the existing PC-05 position (which was previously classified as SE-REM-02) to a CO-04 classification. Although it is true that Mr. Murphy would not have met the education requirements of a SE-REM-02 or a PC-05 position, the evidence establishes that the change to the CO-04 classification was motivated by a change in focus for the business office, from a scientific to a marketing orientation.

61 The Tribunal is satisfied that it was in order to meet organizational requirements, not to personally favour the appointee, that the position was changed to the CO-04 group and level in 2008.

The choice of area of selection

62 The complainant argues that the respondent changed the geographic criteria to "National Capital Region" (NCR) to personally favour the appointee and increase his chances of obtaining the position. She submits that the geographical restriction to the NCR prevented other qualified employees from applying, thus increasing the chances of existing candidates such as the appointee to obtain the position.

63 She did not provide evidence in support of her allegation that the respondent failed to consider and fairly apply the PSEA and the PSC Area of Selection Policy when it set the area of selection set for this process.

64 Pursuant to ss. 15 and 34(1) of the PSEA, deputy heads may determine the area of selection for an appointment process, by establishing geographic, organizational or occupational criteria. According to the PSC's Policy on Area of Selection, the area of selection must provide reasonable access to internal appointments. The intent is to provide a sufficient number of persons to allow a manager to identify a qualified person. Similarly, NRCan's Area of Selection Policy requires the use of areas of selection that provide reasonable access to employment opportunities and a reasonable number of potential candidates to meet departmental business needs, without compromising the flexibility, efficiency and cost-effectiveness of the appointment process.

65 NRCan's Area of Selection Policy states that the area of selection for positions at the CO-04 group and level must normally be "employees of the public service occupying positions in Canada".

66 Jane van Doormaal is a Senior Human Resources (HR) Officer and was responsible for HR support and advice in this process. She testified that Mr. Marrone decided to limit the area of selection to employees in the NCR because there were a sufficient number of potential candidates locally. This is confirmed by the Area of Selection Rationale that she prepared.

67 Mr. Marrone testified that when he set the area of selection, he knew that NRCan had 33 employees at the CO-03 group and level in the National Capital Region. He was also confident that this area of selection would generate good candidates. He said that the process did generate 36 candidates, 10 of whom were employees of NRCan.

68 The Tribunal finds that this interdepartmental process generated a sufficient number of candidates and a reasonable number of qualified candidates, as required by the PSC and departmental policies. Three candidates were found qualified, including the complainant and the appointee.

69 The complainant has not demonstrated that the respondent established this area of selection to favour Mr. Murphy personally.

The decision to screen the appointee into the process

70 The complainant alleges that the appointee does not meet the essential qualification "Experience in business and strategic planning in a technology-based organization". She argues that the appointee did not have enough experience in business planning and reporting, strategic planning, and production of various government documents.

71 The complainant explained that she has been responsible for the business planning activities of Canmet since 1995 and that her own experience allows her to appreciate Mr. Murphy's lack of experience in this area. Mr. Murphy was responsible for business planning only when he acted in the position of DDG – BPC from December 4, 2006 to March 31, 2007, and he then relied on a consultant to prepare the business plan. In support of her statement, she tabled a document titled CETC - Business Development Office – Ottawa - Updated April 5, 2007, which indicates that a consultant prepared the business plan in March 2007.

72 Mr. Marrone agreed that the complainant was responsible for the preparation of the business plan for several years. He stated that consultants had been hired at various times in the past to do the business plan. He did not recall who prepared the business plan in 2007.

73 Although it is not for the Tribunal to substitute its assessment of candidates' qualifications for the board's assessment, the Tribunal may examine whether there has been an abuse of authority in the way the board reviewed applications (see Lavigne v. Canada (Justice), 2009 FC 684 at para. 70).

74 In the present case, the evidence shows that the assessment board was satisfied that Mr. Murphy had the required experience in business and strategic planning in a technology-based environment. His résumé indicates that he acted as DDG-BPC for a total period of eight months. The evidence also shows that during this period, he tasked a consultant with the preparation of the business plan. According to Mr. Marrone, the division had used this practice before.

75 The complainant has not demonstrated that the desired experience could only be acquired through the preparation of business plans without the assistance of a consultant. The Tribunal concludes that the complainant has not established that the board abused its authority when it concluded that Mr. Murphy possesses experience in business and strategic planning in a technology-based organization.

The postponement of the appointee's interview and presentation

76 The complainant alleges that the respondent personally favoured the appointee by agreeing to reschedule his interview after he had received the instructions for his presentation, thus giving him more than one week to prepare. She points to contradictions in the reasons that he gave for rescheduling, in two emails he sent.

77 According to the evidence before the Tribunal, an October 9, 2008, email notified Mr. Murphy that his interview would take place one week later, on Friday, October 17, 2008. The next day, October 10, 2008, he emailed Ms. van Doormaal to request a postponement to the week of October 20, 2008. His email stated the following:

"Hi Jane, I wasn't able to speak with Lisa. I'm on deck to give a presentation at that time to an ADM from Australia who could become a very important collaborator for us. Next week is also very hectic. Would it be possible to push the interview to Mon., Tues or Wed the following week? Thanks"

78 Ms. van Doormaal did not testify about the circumstances of the rescheduling.

79 Dr. Fouda testified that the board wanted candidates to have approximately the same amount of time to prepare for their interview. She does not know who decided to grant his request.

80 According to Mr. Marrone, Mr. Murphy informed Ms. van Doormaal that he would be busy with the presentation to the Assistant Deputy Minister from Australia on the day originally scheduled for his interview and he would not have time to prepare. On Ms. van Doormaal's advice that situations like these required accommodation, Mr. Marrone granted Mr. Murphy's request. Mr. Murphy was not expected to set aside his work-related duties to attend the interview. This meant that he could not work on his presentation.

81 The complainant entered into evidence an email that the appointee sent to Mr. Marrone on March 17, 2009. It states: "As requested, I was in China from Oct 31 - Nov 07, I presented on the 4^th of Nov. My interview was on Oct 28^th. I believe we pushed it a week since, the previous week, we had 2 tours and I had taken annual leave for the 16 and 17^th. Hope this helps".

82 Mr. Marrone explained that in 2009, he contacted Mr. Murphy "to get the facts on what happened at the time" of the postponement of the October 2008 interview. He acknowledged that Mr. Murphy was now saying that annual leave was the reason he could not attend his interview on the originally scheduled date. In Mr. Marrone's opinion, a one-week delay was negligible and had no impact on Mr. Murphy's ability to make presentations, as one could not develop the ability to speak in public and to be persuasive in one week.

83 Even though the emails appear contradictory, the Tribunal does not put much weight on Mr. Murphy's 2009 communication. The evidence shows that, in October 2008, documents contemporary to the events and on which Mr. Marrone and Ms. van Doormaal would have relied indicate Mr. Murphy had to attend to a delegation from Australia. Mr. Marrone authorized a re-scheduling of the interview based on advice from Ms. van Doormaal.

84 The evidence shows that the decision to reschedule was based on the 2008 request, and not on the reasons outlined in the 2009 email, which appears to confuse the dates of the events in 2008. The evidence also shows that in his 2008 email, the appointee asked for an interview date very close in time to the initial interview date proposed. The board actually scheduled the interview on the later date of October 28, 2008, because of the board's availability.

85 The complainant has not established that Mr. Marrone was aware of any reasons other than the ones Ms. van Doormaal gave him when he authorized the rescheduling. In the circumstances, it was reasonable to grant a postponement of the interview.

86 The complainant has not convinced the Tribunal that the board personally favoured Mr. Murphy when it postponed his interview.

The choice of the country for the presentation

87 The complainant contends that the respondent personally favoured the appointee by choosing China as the country for the scenario of the presentation. The appointee had travelled to China more than once in the past in the specific context of high profile trade missions.

88 Dr. Fouda testified that the subject country of the presentation was not important. Rather, the board wanted candidates to explain the uniqueness of the Canadian technology they had chosen to present and the mechanisms to be set up with a foreign country for an eventual, possible commercialization.

89 In his testimony, Mr. Marrone stated that Dr. Fouda had suggested China. It was a convenient country because there is ample information on the Internet and Canada has several projects with Chinese partners. He acknowledged that Mr. Murphy had represented the office in China and in other locations in the past. He noted that no particular score flowed from one's knowledge of China and disagreed that it presented an advantage to Mr. Murphy. The board was interested in how the information was presented.

90 As the Tribunal has confirmed in Jolin v.Deputy Head of Service Canada, 2007 PSST 0011 at paras 26 to 28, s. 36 of the PSEA permits the use of any appropriate assessment tool in determining whether a person is qualified. According to the Assessment Guide, the presentation was used to assess "Ability to communicate (verbally and in writing) and to make presentations to senior government or private sector officials".

91 Mr. Marrone testified that knowledge of China was not assessed. The subject and the country were chosen because a lot of information was available on the Internet for the candidates to use for their presentation.

92 The Tribunal has reviewed the board members' comments for the presentation. It appears that only Mr. Marrone recorded comments on the complainant's and on Mr. Murphy's presentation. As such, a reference to China only appears in Mr. Marrone's notes about the complainant's presentation. They indicate: "presentation was not geared to a Chinese audience (i.e. not for a trade mission)", "more aimed at NRCan and G.C." Otherwise, his comments refer to the manner in which the candidate gave the presentation. They could equally apply to a similar presentation given at a trade mission in a country other than China.

93 The Tribunal finds that the complainant has not demonstrated that the choice of China for the presentation was inappropriate, personally favoured the appointee or gave him an unfair advantage. The board did not assess candidates' knowledge of China.

The manner in which the references were assessed

a) The assessment of the complainant's and of the appointee's references

94 The complainant contends that although she received better references than the appointee did, the respondent allotted him better marks. She believes the board personally favoured Mr. Murphy when it mitigated a less positive reference on his ability to supervise.

95 Mr. Marrone acknowledged that Mr. Murphy's referee, Dr. Habib, made some unfavourable comments about the appointee's ability to manage financial resources and supervise and motivate staff, in particular about his difficulties dealing with challenging, difficult people. His other referee, Eddy Chui, also commented that the appointee "has difficulties with one person only".

96 According to Mr. Marrone, Mr. Murphy's difficulties in this area were due to only one person in the directorate, who had "made it his life mission" to cause him problems. He insisted that this particular situation mitigated the negative aspect of the reference and that Mr. Murphy's references were more positive overall when weighed against these comments.

97 Dr. Fouda's annotations on her report of the referees' comments, made at the board's consensus meeting, indicate: "[I]n discussing with John [Marrone] and Martin [Aubé], it became clear that this was in reference to one particular individual only"; "again [with regard to] one individual only"; and "same point – see E. Chui who said that this was with one individual only".

98 Mr. Marrone indicated that Dr. Habib had indeed spoken to him of this very situation, and said that the complainant could call in Dr. Habib to verify this.

99 Reviewing Dr. Habib's reference for the complainant, Mr. Marrone acknowledged that overall, Dr. Habib's reference was positive, but remarked that he also had made negative comments about her. Dr. Habib's final comment about her was "Cannot see her as a manager for this position."

100 Mr. Marrone commented that both the complainant and the appointee had each received positive and negative references, but that overall, Mr. Murphy was a better manager, and this is why the board did not want to hold against him negative comments that related to one person.

101 The broad discretion provided by s. 36 of the PSEA allows management to determine the tools it will use to assess candidates. As previously stated, the Tribunal's role is not to reassess candidates, but rather to determine if there has been an abuse of authority in the appointment process.

102 The PSEA requires an evaluation of the right fit for a position and not the comparison of one candidate to others, in making a choice for appointment. The complainant and the respondent both provided evidence as to the ratings of the complainant's references and the appointee's. Both received favourable and unfavourable comments.

103 As stated in Visca v. Deputy Minister of Justice, 2007 PSST 0024 at para. 53, personal knowledge of a board member is an accepted assessment method and may be treated as a reference check.

104 The Tribunal has reviewed Mr. Marrone's testimony. It concludes that Mr. Marrone and Mr. Aubé used their personal knowledge of a labour relations situation in the workplace when they reviewed the references that Dr. Habib and Mr. Chui provided. As a result, the board determined it would mitigate, or in other words lessen the significance of some references by Dr. Habib that were critical of Mr. Murphy's "difficulty confronting challenging people".

105 The complainant has not demonstrated that the board personally favoured the appointee when it rated his references.

b) The failure to contact the appointee's third referee

106 The complainant contends that the board acted on inadequate material because it consulted only two of the three referees named by the appointee. It is the complainant's view that contacting three referees would have allowed a more complete assessment of the appointee.

107 Candidates were asked to provide the names of three referees, including one to whom they reported. The complainant and Mr. Murphy had each named five referees.

108 For the complainant, Dr. Fouda obtained references from Mr. Marrone, Dr. Habib, and another referee. For Mr. Murphy, she contacted Dr. Habib, to whom Mr. Murphy then reported, and Mr. Chui, a peer. She halted her attempts to contact his third referee after Mr. Marrone told her that the process needed to be completed and the results issued.

109 In testimony, Mr. Marrone acknowledged that in an email dated November 24, 2008, Mr. Murphy asked him about the status of the appointment process, stating he was considering accepting another position elsewhere. In an email dated November 25, 2008, Mr. Murphy stated "...unfortunately, I'm at the point where I can't wait much longer. Could you [please] give me an indication of the outcome this week, it will stay in confidence with myself and the other group..." Mr. Marrone did not find Mr. Murphy's enquiry unusual or inappropriate, stating that another candidate had also contacted him to ask about the progress of the process.

110 Mr. Marrone then contacted Dr. Fouda and learned that she had not yet been able to reach Mr. Murphy's third referee. Mr. Marrone instructed her to conclude the reference checking process. Two references were deemed sufficient. He said that the assessment process would otherwise have continued into January 2009, and the board would have been at risk of losing a "front-runner" candidate.

111 Shortly thereafter, Dr. Fouda provided her findings to Mr. Marrone and Mr. Aubé.

112 The Tribunal finds unusual the fact that Mr. Marrone ordered the reference checks stopped after Mr. Murphy's enquiries. However, the evidence has not convinced the Tribunal that Mr. Marrone's decision not to seek a third reference leads to a finding of personal favouritism. As Mr. Marrone testified, he wanted to finish an appointment process that had started about six months earlier and he did not want to risk losing a very strong candidate.

113 By the time Dr. Fouda was instructed to cease attempting to contact Mr. Murphy's third referee, she had already obtained references from Dr. Habib and Mr. Chui. It was not unreasonable for Mr. Marrone to decide to proceed with the references already obtained. The decision not to obtain a third reference falls within the discretion provided by s. 36 of the PSEA.

114 The complainant has not demonstrated that the board personally favoured Mr. Murphy by not contacting a third referee, or that it did not have sufficient information to substantiate its assessment of this candidate.

Statements made by Mr. Marrone at Mr. Rubino's informal discussion

115 Mr. Rubino, a Business Development Officer at the CO-02 group and level, provided testimony that demonstrates, from his point of view, that the result of the appointment process was predetermined.

116 Mr. Rubino was a candidate in this appointment process but was screened out, based on experience. He strongly disagreed with that decision and requested an informal discussion with Mr. Marrone. He testified that at his informal discussion Mr. Marrone expressed surprise that he had applied for a CO-04 position two levels above his current one. He said that Mr. Marrone discussed his own experience, acquired in incremental steps, and his responsibilities before attaining his current level.

117 Mr. Marrone told him, during the informal discussion, that another promotional opportunity for a CO-03 position within the group would present itself once the DDG ‑ BPC position was filled. He understood this to mean that the assessment board had a specific candidate in mind and that this candidate was Mr. Murphy, who was the incumbent of the CO-03 position in the unit.

118 According to Mr. Marrone, Mr. Rubino misunderstood his statement with regard to a future CO-03 promotional opportunity once the DDG-BPC position was filled. There were four CO-03 candidates in the process and, statistically, a position would become available if one of these candidates was successful. There are 80 CO-03 positions in the organization; and Mr. Marrone knew of many opportunities in the department.

119 Having considered the parties' testimony, the Tribunal finds that the explanations provided by Mr. Marrone are reasonable. In the Tribunal's opinion, there is insufficient evidence before it to conclude that Mr. Marrone's statements about the CO-03 positions conveyed that Mr. Murphy was the predetermined candidate. Mr. Marrone described a number of reasons for which CO-03 positions could become available. The Tribunal is not persuaded that Mr. Marrone was in fact telling Mr. Rubino that it was Mr. Murphy's position that would become available.

120 In summary, the Tribunal finds that the complainant has not demonstrated that the respondent abused its authority by reason of personal favouritism towards the appointee.

Issue III:  Does the personal friendship between board member Martin Aubé and the appointee give rise to a reasonable apprehension of bias?

121 The complainant contends that Mr. Aubé should have declined to be a board member because he is a friend of the appointee. This personal friendship gives rise to a reasonable apprehension of bias by Mr. Aubé towards the appointee.

122 Asked about the nature of his relationship with Mr. Murphy, Mr. Aubé stated that they are good friends. He stated that they first met about 15 years ago when both worked in the same laboratory. Their friendship developed after Mr. Murphy came to work for him around 1997-1998, at the Bells Corners complex. They saw each other socially for about two or three hours every five or six months, with varying frequency. Mr. Aubé's subsequent appointment as Executive Director of CANMET Energy Secretariat led him to move to another physical complex in 2002, at which point they saw each other occasionally and had minimal contact outside working hours. The pattern remained the same over the years, until Mr. Murphy came back to work in the same sector and their contacts became more frequent again.

123 Mr. Aubé stated that their interaction was more professional when Mr. Murphy acted for him, although they still went out every couple of months or so for a beer. Their relationship remained the same, professionally and socially with varying frequency, during the staffing process. He testified that his friendship with Mr. Murphy had no impact on his ability to assess him impartially. He said he was able to put their friendship aside and only assess Mr. Murphy's performance. He knew that the consequence of not assessing impartially is a lack of fairness. If he were found to have been partial, it would affect his reputation and cast a doubt on how independent he could be in his delegated responsibilities in staffing.

124 He stated that the frequency of his social interaction with the appointee did not affect the nature of their relationship; this is why he said that they were good friends. The thought of having a good friend in a key position in relation to his own never crossed his mind.

125 In cross-examination, Mr. Aubé acknowledged he did not disclose that he and Mr. Murphy are good friends. It was common knowledge because he has worked in the sector for so long. He could not recall when he learned that Mr. Murphy had applied for this appointment process. He said Mr. Murphy probably raised it with him. He could not remember whether Mr. Murphy solicited his feedback on his candidacy.

126 Mr. Aubé testified that when the board discussed the evaluation of the candidates in the appointment process, he was able to do so objectively and without being affected by his personal relationship with the appointee. He could dissociate his professional and personal relationship with Mr. Murphy when the board discussed him and in those discussions, he limited himself to the answers Mr. Murphy had provided. The board always discussed candidates' answers then reached consensus.

127 Mr. Aubé said he did not provide Dr. Fouda with a reference for Mr. Murphy in the reference checks she conducted. The board did not discuss each candidate's references in detail but rather discussed what it heard from Dr. Fouda and considered the consistent message. The reference checks sometimes confirmed what the board had seen in the interview. The board rated the candidates' references by consensus.

128 He could not explain why his copy of the Assessment Guide used to record candidates' answers at the interview does not show any scoring for Mr. Murphy but does for the complainant.

129 Mr. Aubé believes he discharged his responsibility in a fair and honest manner.

130 Dr. Fouda testified that Mr. Aubé provided objective comments in support of his notes and observations. He was completely proper throughout the appointment process and did not improperly influence its outcome

131 The PSEA ushered in a significant change in the approach to staffing in the public service. While the Act provides that the PSC and deputy heads, where delegated, have considerable discretion in staffing matters, they must exercise this discretion without abusing their authority. Likewise, the staffing process has a legislative framework that must guide all decision-making. Transparency and fairness are two of the values in the preamble of the PSEA that guide such decision-making.

132 Section 2(4) of the PSEA specifically includes bad faith in the definition of abuse of authority. The meaning that case law ascribes to bad faith is broad, does not require proof of intentional fault and includes bias and apprehension of bias (see Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010 at paras. 61 and 62; Denny v. Deputy Minister of National Defence, 2009 PSST 0029 at paras. 121 and 122).

133 As noted in Gignac, the Supreme Court of Canada has expounded upon a well - established duty to act fairly in all administrative decisions affecting an individual's rights, privileges and interests (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). The factors used to determine the extent of the duty of fairness include the nature of the decision, legislative context, and the effect on the individual. The legislative context for a staffing complaint is one where Parliament specifically requires fairness in employment practices.

134 In examining issues of bias and of reasonable apprehension of bias, the courts have acknowledged that it is difficult to establish direct evidence of actual bias. The manner in which the test for bias should be applied was set out in dissenting reasons in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394.

[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 [this person], whether consciously or unconsciously, would not decide fairly.

(emphasis added)

135 This test has been adopted and repeatedly applied by the courts (see Newfoundland Telephone Co. V. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; and R. v. S. (R.D.), [1997] 3 S.C.R. 484).

136 The appropriate test for bias to apply must be viewed contextually and on a continuum, with a consideration of the functions to be performed and the legislator's intention. Within the context of staffing and the PSEA, the test for reasonable apprehension of bias adheres to the requirements of the legislation for fairness and transparency in the appointment process.

137 A more minimalist and less strenuous test would undermine the values laid out in the PSEA and its preamble. The test to be used and the definition of the nature of functions to be performed cannot and should not simply be bifurcated between the administrative and judicial functions in the administrative realm. The content of the duty of impartiality of an administrative function might vary, as that of all the rules of procedural fairness, in order to reflect the context of a decision-maker's activities and the nature of its function. As noted in Pelletier v. Canada (Attorney General), 2008 FCA 1 at para. 50, these variations in the actual content of the principles of natural justice acknowledge the great diversity in the situations of administrative decision - makers and in the roles they play, as intended by legislators.

138 Bias and the reasonable apprehension of bias can be established when there is a sufficiently close personal relationship with someone who has a direct interest in the outcome of the decision. In Principles of Administrative Law, (Jones, David Phillip and de Villars, Anne, Thomson Carswell, Toronto: 2009), the authors discuss situations where the decision-maker has a close personal relationship with someone who has a direct interest in the outcome of the decision at issue, and note at pages 408-409 that this could give rise to a reasonable apprehension of bias:

Where a decision-maker has a sufficiently close personal relationship with someone who has a direct interest in the outcome of the decision, that relationship will give rise to a reasonable apprehension of bias and that person is disqualified from taking part in the decision. ... The central issue ... is typically whether the relationship between the decision-maker and the person involved ... is sufficiently close that a reasonable person would have concerns about the decision-maker's ability to judge that matter impartially.

139 Candidates in an assessment process must be able to trust that the process will be run in a fair manner. A reasonable apprehension of bias taints the process and raises doubts about its integrity. Fairness requires that board members be diligent in avoiding situations that could give rise to an apprehension of bias of the decision-maker as an individual.

140 Applying the test of reasonable apprehension of bias set out by the Supreme Court, one must ask whether a reasonably informed bystander looking at this process would think that it is more likely than not that Mr. Aubé, whether consciously or unconsciously, could not decide fairly.

141 The Tribunal finds that the evidence related to the assessment of the candidates and Mr. Aubé's involvement on the evaluation does raise an apprehension of bias towards Mr. Murphy. Mr. Aubé's input went beyond limiting himself to the answers Mr. Murphy had provided or confirming the information Dr. Fouda reported, as he testified. Because of their personal friendship, his participation could be viewed as having provided the appointee with an advantage. The evidence shows that during the evaluation of the references, the board discussed negative comments about the appointee that came up in the reference assessment. When the board discussed a particular comment by Dr. Habib regarding Mr. Murphy, both Mr. Marrone and Mr. Aubé (as indicated by Dr. Fouda's notes) mitigated this reference with their personal knowledge of the work environment.

142 Furthermore, Mr. Aubé confirmed that he did not interrupt his social contacts with Mr. Murphy during the appointment process. The Tribunal notes that Mr. Aubé could not deny that Mr. Murphy solicited his feedback on his candidacy, nor was Mr. Murphy called to rebut the inference that Mr. Aubé did provide such feedback. The Tribunal also finds surprising that Mr. Aubé, a board member, was not able to state categorically that he had no discussion with his friend Mr. Murphy about his candidacy once the process was engaged, or that he declined to engage in such a discussion.

143 Despite Mr. Aubé's assurance that he could and did assess Mr. Murphy in a strictly neutral and detached manner, the Tribunal finds that a reasonable person would have concerns about his ability to do so. The relationship of friendship creates a reasonable concern that Mr. Aubé, consciously or unconsciously, was influenced by his friendship with Mr. Murphy.

144 The bystander observing this appointment process would come to a determination that there was a reasonable apprehension of bias due to Mr. Aubé's participation in the process. The bystander would observe that, contrary to his testimony, he was actively engaged at key junctures, when potentially negative information about the candidate was being weighed, in influencing the outcome for his friend who was a candidate in the process. The bystander would be concerned about the fact that the board member did not state that he was a friend prior to participating on the board. Knowing that other board members were aware of the friendship between Mr. Aubé and the appointee, reasonably thinking it through, the bystander would be concerned that nothing was done to mitigate the fact that the appointment process could be tainted at the outset unless safeguards were put in place to ensure that there was no reasonable apprehension of bias. The bystander would also consider the fact that the board member in question continued to see his friend throughout the process, and the fact that he was not able to state that there was no discussion between them about the appointment process. Based on all of these factors, the bystander would come to a conclusion that the board was not able to exercise its responsibilities fairly.

145 For all these reasons, the Tribunal finds that Mr. Aubé's friendship with the appointee taints the appointment process and gives rise to a reasonable apprehension of bias towards the appointee, which constitutes abuse of authority.

Conclusion

146 For the reasons outlined above, the Tribunal finds that the board abused its authority in the manner in which it assessed the appointee's presentation.

147 On the issue of bias, the Tribunal finds that there was a reasonable apprehension of bias in favour of the appointee in the appointment process.

Order

148 The Tribunal orders that the deputy head revoke the appointment of M. Murphy within 30 days.

Lyette Babin-MacKay
Member

Parties of Record

Tribunal File:

2009-0015

Style of Cause:

Jane Bain and the Deputy Minister of Natural Resources Canada

Hearing:

February 22 and 23, 2010;
June 14 to 17, 2010; and
November 15 to 17, 2010
Ottawa, Ontario

Date of Reasons:

October 14, 2011

APPEARANCES:

For the complainant:

Chloé Charbonneau-Jobin

For the respondent:

Martin Charron

For the Public
Service Commission:

Lili Ste-Marie