FPSLREB Decisions

Reasons for Decision

Introduction

1On April 8, 2010, the complainant, Michel Huot, filed a complaint with the Public Service Staffing Tribunal (the Tribunal) alleging that the respondent, the President of the Canada Economic Development Agency, abused its authority in an advertised internal appointment process to staff two positions, namely, Director, Accounting Operations, and Director, Active Monitoring and Internal Control, at the FI-04 group and level. The complainant contests the respondent's decision to screen him out on the ground that he did not meet the criterion of recent and significant experience in managing (planning, organizing and directing) a financial management unit.

2 The respondent noted that only one of the eleven applicants met the essential qualifications for the positions and that that person was appointed to the position of Director, Accounting Operations. That appointment is the subject of this complaint. According to the respondent, the complainant was screened out because he failed to demonstrate that he met the aforementioned criterion of recent and significant experience.

3 The Public Service Commission of Canada did not take part in the hearing. However, it provided written submissions and a book of authorities.

Background

4 The Tribunal issued a Notice of Hearing to the parties on October 28, 2010, to inform them that the hearing of the complaint would take place in Montréal on March 15 and 16, 2011, at 9 a.m. On January 18, 2011, the Tribunal sent a Notice of Venue confirming the date, time and exact location of the hearing.

5 On March 10, 2011, the hearing had to be postponed because the complainant was unable to attend. The Tribunal asked the complainant to provide an update on his availability by the 15th day of each month. The Tribunal had to remind the complainant to provide the update on two occasions, April 21 and May 20, 2011.

6 After receiving no response from the complainant, the Tribunal issued a new Notice of Hearing on June 1, 2011, setting the hearing date for September 22 and 23, 2011. On July 22, 2011, the Tribunal sent a Notice of Venue confirming the date, time and exact location of the hearing.

7 On September 13, 2011, the respondent asked the complainant for the list of documents and authorities that he intended to submit at the hearing. The complainant did not respond to that request for information.

8 On September 21, 2011, a day before the start of the hearing, the complainant notified the parties by email that he was on a one-year sabbatical and outside the country. Regarding the hearing scheduled for the next day, the complainant added: "Unfortunately, I cannot attend the hearings and I defer to the Tribunal's impartial judgment on the basis of the documents, background and statements that I provided when I made my complaint and that are complete" [translation].

Respondent's arguments

9 The respondent asked the Tribunal to dismiss the complaint.

10 The respondent noted that the complainant did not attend the hearing and, as a result, no testimony or document was duly submitted to the Tribunal for its consideration. Although the complainant's allegations could serve as a starting point to define or frame the debate between the parties, the allegations in no way discharged the complainant's burden of demonstrating, on a balance of probabilities, the existence of an abuse of authority.

Analysis

11 The Tribunal is master of its own procedures in its capacity as an administrative tribunal. According to section 99(1)(d) of the PSEA, the Tribunal can "accept any evidence, whether admissible in a court of law or not." In addition, section 29 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116, stipulates that if a party does not appear at the hearing and the Tribunal is satisfied that notice of the hearing was sent to that party, the Tribunal may proceed with the hearing and dispose of the complaint without further notice.

12 In this case, there is no doubt that the complainant was notified of the date, time and location of the hearing.

13 As acknowledged by the Tribunal in Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 49, 50 and 55, complainants have the burden of proof with respect to complaints of abuse of authority before the Tribunal. It follows that complainants must prove, on a balance of probabilities, their allegations of abuse of authority. In order to discharge the burden, evidence must be submitted in support of the allegations. In Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020, the Tribunal specified that:

[50] It is not sufficient for a complainant to make bold statements in the complaint and allegations claiming abuse of authority without supporting these allegations with evidence from witnesses, facts and/or documents. The fact that the complainant disagrees with the selection board's decision as to whether the complainant had the required experience in two fields does not amount to abuse of authority and is clearly insufficient for the complaint to succeed.

14 In this case, the Tribunal finds that the complainant did not submit any evidence in support of his allegations. In his letter of September 21, 2011, he referred to the documents submitted with his complaint. On their face, the documents in no way support his allegations. Given that the complainant did not submit any evidence in support of his allegations, he failed to substantiate his complaint. The complaint is thus dismissed.

15It must be noted that the complainant's behaviour is unacceptable. A significant amount of time and money was spent on organizing the hearing. After receiving a notice of hearing, parties must notify the Tribunal in a timely manner if they decide not to make use of their right to be heard. The complainant's actions in this matter show a serious lack of respect for the Tribunal and the other parties.

Decision

16 For all these reasons, the complaint is dismissed.

Maurice Gohier
Member

Parties of Record

Tribunal File:

2010-0196

Style of Cause:

Michel Huot and the President of the Economic Development Agency of Canada for the Regions of Quebec

Hearing:

September 22, 2011
Ottawa, Ontario

Date of Reasons:

October 14, 2011

APPEARANCES:

For the complainant:

None

For the respondent:

Pierre-Marc Champagne

For the Public
Service Commission:

Trish Heffernan (written submissions)