FPSLREB Decisions

Reasons for Decision

Introduction

1 Nicolas Marcil, the complainant, participated in an internal advertised appointment process to staff an Office Boating Safety Manager position at the PM-05 group and level (the OBS Manager position) at the Sarnia Office of Marine Safety, which is part of the Department of Transport, Infrastructure and Communities (Transport Canada). He was found qualified, but the Deputy Minister of Transport Canada (the respondent) determined that another candidate, Katherine Morris, was the right fit for the position and appointed her.

2 The complainant brought a complaint to the Public Service Staffing Tribunal (the Tribunal) alleging that the respondent abused its authority by not applying the merit criteria properly. He also alleges that the respondent showed personal favouritism towards the appointee and that one of the assessment board members favoured Mrs. Morris because of his personal relationship with her husband. As well, the complainant contends that the assessment board was biased against him because he had denounced contracting irregularities in his office.

3 The respondent denies that it abused its authority. It denies that it favoured anyone in the appointment process and maintains that the assessment board was not biased against the complainant.

4 The Public Service Commission's (PSC) position is that appointments should comply with its Assessment Policy, which provides that assessment tools must assess qualifications effectively and assessments must be made without bias.

5 The respondent later conducted an investigation into the appointment process and discovered that there had been an error in the assessment of candidates. It decided to reassess them and found that Mrs. Morris was qualified, but not the complainant.

6 The complainant argues that the respondent should not have reassessed the candidates since he had already brought a complaint to the Tribunal regarding Mrs. Morris' appointment. He also alleges that the respondent did not properly accommodate him during the reassessment and that Mrs. Morris had gained an unfair advantage in the reassessment since she had been occupying the position for two years by the time it took place.

7 The respondent's position is that the Tribunal should take into consideration the reassessment of the candidates in determining whether there was an abuse of authority. It also contends that it provided proper accommodation for the complainant and that Mrs. Morris did not gain an unfair advantage in the reassessment of candidates.

8 The PSC agrees that the Tribunal should focus on the second assessment of candidates instead of the initial one in determining whether there was an abuse of authority. The PSC does not take a position on whether the complainant was properly accommodated during the reassessment. It states, however, that if the Tribunal decides that the complainant was not properly accommodated, then this would constitute an abuse of authority.

Background

9 On December 1, 2006, the respondent posted a Job Opportunity Advertisement on the Publiservice website for the OBS Manager position (appointment process no. 06 - MOT-CC-TOR-009514). Eleven candidates applied for the position. Five candidates, including the complainant, met the essential qualifications established for the position. The manager determined that Mrs. Morris was the right fit for the appointment and sent a Notification of Appointment or Proposal of Appointment to candidates in the appointment process on June 29, 2007.  The other four qualified candidates were placed in a pool of qualified candidates for future vacancies.

10 On August 1, 2007, the complainant filed a complaint with the Tribunal under s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA).

11 In 2008, after the complainant had filed his complaint, the respondent initiated an investigation into the appointment process to determine whether merit was applied properly. The investigator issued a report in December 2008 (the investigation report), which found that errors were made in the appointment process. According to the investigation report, if the candidates had been properly assessed, the complainant and Mrs. Morris, the appointee, would each have failed one essential qualification.

12 As a result of finding this error, rather than revoke Mrs. Morris' appointment and commence a new appointment process, the respondent decided to conduct new examinations and interviews and reassess all candidates in August 2009. The second assessment board was comprised of entirely different members. In the reassessment, the complainant failed leadership, an essential qualification, but Mrs. Morris was found to meet all essential qualifications.

13 The complainant provided notice to the Canadian Human Rights Commission (CHRC) that he intended to raise an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. The CHRC informed the Tribunal that it did not intend to make submissions in this complaint.

Issues

14 The Tribunal must decide the following issues:

1. Did the respondent abuse its authority in the application of merit?
2. Did the respondent show personal favouritism towards the appointee?
3. Was Richard Huras a personal friend of the appointee's husband, and if so, does it give rise to a reasonable apprehension of bias?
4. Did the respondent demonstrate bias against the complainant?
5. Should the Tribunal take into consideration the reassessment of candidates?

Analysis

15 Section 77(1)(a) of the PSEA provides that a person in the area of recourse may make a complaint to the Tribunal that he or she was not appointed or proposed for appointment because the PSC or the deputy head abused its authority in the appointment process. As the Tribunal's jurisprudence has established, the complainant has the burden to prove, on a balance of probabilities, that there was abuse of authority. (See, for example, Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at para. 49).

Issue I:  Did the respondent abuse its authority in the application of merit?

16 The complainant alleges that there were several irregularities in the appointment process regarding the application of merit.

17 In matters of assessment of candidates in an appointment process, the Tribunal has held in numerous decisions that its role is to determine whether there has been an abuse of authority, not to reassess candidates or redo the appointment process. (See, for example, Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020).

18 The assessment board was comprised of Raymond Krick, Regional Director, Marine Safety, Ontario Region, who chaired the board, Richard Huras, Manager, Special Projects, and Carrie Miller, A/Regional Director, Human Resources, Ontario Region. Mr. Krick was the delegated manager. Mr. Krick and Mr. Huras have since left the public service and Ms. Miller passed away.

The assessment error discovered during the investigation

19 Debra Taylor is the Director General of the Ontario Region. In the spring of 2008, she was informed that there may have been assessment errors in the OBS Manager PM-05 appointment process. She therefore recommended that an investigation be conducted into the matter. The Deputy Minister accepted this recommendation, and an investigation was initiated.

20 Rawan El-Komos is the Chief, Corporate Staffing and Development Programs, Transport Canada. She is responsible for the overall integrity of staffing at Transport Canada. She explained that the investigation started in May 2008 and was completed in November 2008. The investigation report was provided to the Deputy Minister. All affected parties were given the opportunity to comment on the findings of the investigation report.

21 The respondent argues that the Tribunal does not have jurisdiction to consider the investigation report, including the investigator's conclusions. The PSC contends that the Tribunal can examine the investigation report as part of the context of this complaint.

22 The complaint was filed with the Tribunal pursuant to s. 77 of the PSEA prior to the respondent's decision to initiate an investigation into the appointment process. The mandate of the Tribunal is set out in s. 88(2) of the PSEA. The Tribunal is to consider and dispose of complaints made under ss. 65(1), 74, 77 and 83. There is no provision in the PSEA that precludes the Tribunal from considering the investigation report. It is not a jurisdictional issue, rather an evidentiary one. The Tribunal accepted the investigation report into evidence since it was relevant to the complaint. However, for the reasons outlined below, the Tribunal placed little weight on the investigation report.

23 The respondent adds that if the Tribunal decides to consider the investigation report, it should bear in mind that the opinions contained in the investigation report are not the views of the deputy head, but those of the investigator. The respondent emphasizes that the investigation report cannot stand for the truth of its content since in many aspects it constitutes double hearsay.

24 The Tribunal finds that, while the Tribunal can consider the investigation report, it is not bound by any conclusions set out in the investigation report. It must reach its own conclusions regarding the appointment process based on all the evidence presented at the hearing.

25 With respect to the probative value of the investigation report, the Tribunal gives little weight to the report because the author of the investigation report was not called to testify to its veracity and its contents.

26 Mr. Krick was Regional Director, Marine Safety, Ontario Region. He retired in 2008. He and Ms. El-Komos gave testimony regarding the errors in the appointment process. They explained that the investigation concluded that the assessment board erroneously grouped the knowledge qualifications, abilities qualifications and personal suitability qualifications, and applied a global passing mark to each group of qualifications, instead of determining whether candidates met each essential qualification in each group. If the assessment board had used a pass mark for each essential qualification, neither the complainant nor Mrs. Morris would have been found qualified. Both the complainant and Mrs. Morris would have failed one essential qualification. The complainant would have failed "knowledge of roles, responsibilities, and accountabilities and authorities in the Marine Safety Branch." Mrs. Morris would have failed the "ability to communicate orally and in writing."

27 The complainant alleges that the use of global marking in the assessment of candidates was an error.

28 The complainant also notes a number of alleged flaws in the manner in which the investigation was carried out. The Tribunal will not comment on those alleged flaws since they only become material if they bear some relevance to the appointment process under review, and that is not the case with regard to the flaws identified by the complainant.

29 Based on the uncontested evidence of Mr. Krick and Ms. El-Komos, the Tribunal finds that Mrs. Morris did not meet one of the essential qualifications established for the position. The question then becomes whether that error constitutes an abuse of authority within the meaning of s. 77(1)(a) of the PSEA. While the respondent concedes that using a global pass mark in that manner was an error, it argues that the error does not constitute an abuse of authority.

30 The expression "abuse of authority" is not defined in the PSEA. However, s. 2(4) stipulates that it includes bad faith and personal favouritism. In Kane v. Attorney General of Canada and Public Service Commission, 2011 FCA 19, leave to appeal to the Supreme Court of Canada pending, the Federal Court of Appeal held that abuse of authority can also include errors:

[64]...abuse of authority on the one hand, and errors, omissions and improper conduct on the other, overlap. All abuse of authority involve improper conduct and error, while some instances of error, omission and improper conduct may also be an abuse of authority...

31 Whether an error will constitute an abuse of authority will therefore depend on the nature and seriousness of the error. In Rochon v. Deputy Minister of Fisheries and Oceans, 2011 PSST 0007, as in the case here, global scoring was used. The Tribunal found abuse of authority in that case and revoked the appointment. The Tribunal stated as follows:

[73] [The Tribunal] further finds that this carelessness was sufficiently serious as to constitute abuse of authority. The respondent assessed two of the experience qualifications on the basis of a combined score, rather than assessing each of these essential qualifications individually.

...

[81] In conclusion, s. 30 of the PSEA states that appointments are to be based on merit and that an appointment is based on merit where the person to be appointed meets the essential qualifications for the work to be performed. In this case, the Tribunal finds that the respondent has not demonstrated that Mr. Yamamoto meets all of the essential qualifications because it has not clearly established that he has been assessed against two of the abilities qualifications or that he met each of the experience qualifications. These are serious errors and omissions that constitute abuse of authority under s. 77(1) of the PSEA.

32 In this case, the respondent conceded that if each essential qualification had been properly assessed, Mrs. Morris would have failed an essential qualification. It follows that Mrs. Morris should not have been appointed to the position since s. 30(1) of the PSEA stipulates that appointments must 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 appointed meets all the essential qualifications established by the deputy head for the work to be performed.

33 The appointment of a person who does not meet all the essential qualifications is an appointment that is not based on merit. The Tribunal finds that such an error is serious enough to constitute an abuse of authority. (See, for example, Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 0044, at para. 38).

34 The respondent therefore abused its authority in the application of merit when it appointed Mrs. Morris.

35 This conclusion is sufficient to dispose of the complaint. However, the Tribunal will address the other allegations raised by the complainant with respect to Mrs. Morris' initial assessment.

Other allegations

Experience in the delivery of a marine program directed to the public

36 The complainant alleges that Mrs. Morris' application did not demonstrate that she possessed "experience in the delivery of a marine program directed to the public," an essential qualification for this position. He also pointed out that there was no documentation from the assessment board that indicated why it determined that she possessed that qualification.

37 The complainant referred the Tribunal to the investigation report where the investigator indicated that there was insufficient information on file for most of the applicants to clearly determine that they had experience in the delivery of a marine program directed to the public.

38 The Tribunal reiterates that the investigation report is of little value in determining whether Mrs. Morris possessed this experience qualification. The investigator did not refer specifically to Mrs. Morris, only to "most of the applicants," nor was she called to testify.

39 Mr. Krick testified that he and Mr. Huras did the screening, as indicated in the Signed Statement of Persons Present at the Screening Board. Mr. Huras went through the résumés with a human resources advisor and Mr. Krick reviewed the results. In Mr. Krick's view, Mrs. Morris did show that she possessed "experience in the delivery of a marine program directed to the public." Mrs. Morris indicated in her application that, as a superintendent of Program Coordination from September 2005 to the time of the appointment process, she worked on the Canadian Marine Advisory Council. According to Mr. Krick, this showed that she had extensive experience in the delivery of marine programs.

40 Mrs. Morris also testified regarding her experience in the delivery of a marine program directed to the public. She has been working in the public service for 25 years, 14 years of which were for the Canadian Coast Guard, which she joined in 1993. At that time, the Canadian Coast Guard was part of the Department of Fisheries and Oceans. In 1999, when she worked for OBS, which was part of the Canadian Coast Guard, she was responsible for client outreach.

41 In Mrs. Morris' résumé, which was tendered into evidence, it indicated that she possessed this experience requirement. She added in her résumé that when she worked as a Superintendent, Program Coordination at the Canadian Coast Guard from September 2005 to the present, she was "representing Maritime Services at industry and public meetings and information sessions." In that same position, she "[d]eveloped and implemented business plans for the Office of Boating Safety [...] detailing accountability accords for each program area." The résumé also states that when she worked as a Boating Affairs Officer at the Canadian Coast Guard in 1999 and 2000, she developed and facilitated boating safety consultations, which included liaising with participants.

42 The Tribunal finds that there is no evidence before the Tribunal to contradict the information contained in Mrs. Morris' résumé, her testimony, or Mr. Krick's testimony, or that would lead to a different conclusion from that of the assessment board.

Training in risk management

43 The complainant contends that Mrs. Morris did not possess training in risk management, an asset qualification.

44 The Tribunal notes that the term "risk" is not defined in the appointment process documentation. The Tribunal will therefore give the term its ordinary meaning, which is broad enough to include financial risk or risk to the personal safety of persons.

45 The Tribunal finds that the complainant has not established that the assessment board assessed that asset qualification improperly. There is evidence that Mrs. Morris met this asset qualification. It was assessed during the interview. Candidates were asked to describe their training in risk management. In the notes that Mr. Krick took during the interview, he wrote that Mrs. Morris had "some" risk management training. According to those notes, Mrs. Morris stated during the interview that risk management was included in the human resources and business planning training she undertook. Those notes also state that Mrs. Morris underwent risk management – client services training for personal safety. Mrs. Morris added during the interview that she identified and implemented priorities with budget restraints of program delivery. In her testimony, Mrs. Morris stated that she was trained in risk management when she worked as a communications officer. She also stated that in previous employment, she monitored the budget to ensure the level of risk was manageable. Her testimony concerning this asset qualification was not contested.

Rating scale for experience and training requirements

46 The complainant also contends that the assessment of candidates was flawed because there was no rating scale for the seven experience and training asset qualifications. The Tribunal is not persuaded by his argument. Those requirements were assessed in the interview. That part of the assessment involved simply asking candidates whether they possessed the asset experience or had undergone the asset training. For example, one question asked candidates whether they had a university degree related to marine safety. The candidate either did or did not have the degree. That type of meet/does not meet assessment does not necessarily need rating scales.

The right fit rationale

47 The complainant also contends that the right fit criteria should have been documented before the screening process. The assessment board should have indicated what weight it would give to each qualification before the appointment process. By not doing so, it was easy for Mr. Krick to tailor the right fit criteria to favour Mrs. Morris.

48 The term "right fit" is not a term found in the PSEA. It is a term used in the human resources community to describe the basis for deciding who will be appointed from among qualified candidates in an appointment process. The merit and other criteria used to select someone for appointment are recorded in a written right fit rationale. The Tribunal has also used this term to illustrate the manager's discretion to choose among qualified candidates the person who, in his or her opinion, is the right fit. In this case, the evidence indicates that all the essential and asset qualifications, as well as the operational requirements and needs of the organization, were established before the screening process. They were all included in the Job Opportunity Advertisement. As to the right fit rationale, it was done after candidates were assessed. There is nothing irregular in this. There is no legal requirement that it be set down before the assessment of candidates. It can be developed after the assessment since the rationale for appointing a person will often depend on the composition and performance of the candidates. For example, the rationale may be different in situations where two candidates have the same performance on an essential qualification. In such a situation, the delegated manager might use an asset qualification to assist in making its selection. But if one candidate performs very well on an essential qualification and another one barely meets the qualification, the delegated manager might decide not to give much weight to the asset qualifications and prefer the candidate who performed very well on the essential qualification. These are but two examples to illustrate that setting out the right fit rationale before the assessment of candidates could unduly reduce the efficiency of the appointment process.

49 In this case, the assessment board decided on the right fit rationale after the assessment of candidates. Mr. Krick testified that Mrs. Morris was found to be the right fit because she met all the essential qualifications and scored highest on personal suitability. The assessment board determined that the personal suitability qualifications were an important factor in this appointment process because it was a management position. Mr. Krick referred to the rationale found in the Selection Board Report of May 31, 2007, which also states that Mrs. Morris was chosen for those reasons, and because she was in the top three candidates in overall scoring for the essential qualifications. The rationale also noted that she possessed three of the most desirable asset qualifications. As indicated above, there was nothing wrong in setting out the right fit rationale after the assessment of candidates.

Alleged irregularities in other staffing processes

50 The complainant raised issues concerning appointments of other people in other appointment processes. The Tribunal has no jurisdiction over those processes and the complainant failed to establish any link between them and the appointment at issue.

Issue II: Did the respondent show personal favouritism towards the appointee?

51 The complainant contends that the respondent showed personal favouritism towards Mrs. Morris. His evidence centres on three areas: the area of selection, the inclusion of training in risk management as an asset qualification, and Mrs. Morris' acting appointment to the Issues Manager position.

Broadening the area of selection

52 On December 1, 2006, the respondent posted a Job Opportunity Advertisement on Publiservice for the Manager OBS position. The closing date for receipt of applications was December 15, 2006. The appointment process was opened only to employees of Transport Canada in Sarnia, Ontario, and the National Capital Region (NCR) who were employed in specific Transport Canada offices identified through postal codes. On December 7, 2006, the area of selection was broadened to include employees of the public service employed and/or residing in Sarnia and the closing date for receipt of applications was extended to December 21, 2006. Mrs. Morris was not in the initial area of selection since she was working at the Department of Fisheries and Oceans. She was, however, in the amended area of selection since she worked in Sarnia. The complainant contends that Mr. Krick broadened the area of selection specifically to include Mrs. Morris in the appointment process.

53 Mr. Krick testified that he decided to expand the area of selection to include federal public service employees in Sarnia because there were potential candidates in Sarnia working in other departments. For example, the Department of Fisheries and Oceans had 200 employees with marine experience. He did not want to expand the area of selection to the entire country as that would have been unmanageable and the respondent may have had to pay for relocation expenses. Mr. Krick added that he did not expand the area of selection to favour anyone and that Mr. Huras, who the complainant alleges was a friend of Mrs. Morris' husband, did not exercise any influence on him to expand the area of selection to include Mrs. Morris.

54 The Tribunal finds that there is no evidence that the area of selection was expanded to favour Mrs. Morris. It accepts the respondent's explanation that employees of other departments potentially had the experience it sought, particularly those working for the Department of Fisheries and Oceans, where the OBS had formerly been housed.

Including training in risk management as an asset

55 The complainant alleges that the respondent included training in risk Management as an asset qualification to favour Mrs. Morris. The respondent denies that it included that qualification to favour her.

56 The Tribunal accepts Mr. Krick's explanation that risk management is related to the work to be performed. Mr. Krick provided a persuasive explanation to the effect that risk management is related to the duties of the position. He explained that decisions on spending have elements of risk and that, since the OBS has a large program that provides education on pleasure boating to the public to protect their safety, it does risk management assessments to determine how to reach all boaters. He added that it was a popular requirement to include that asset in statements of merit criteria (SMC) at Transport Canada at that time. Mr. Krick's testimony is corroborated by that of Ms. Taylor, who testified that it would have been her expectation to have training in risk management as an asset in the SMC. She explained that Transport Canada has implemented risk management practices in the aviation sector and was trying to implement it across the department.

57 The Tribunal finds that there is no evidence to support the complainant's allegation concerning training in risk management.

58 The Tribunal notes that there is some inconsistency with the complainant's arguments regarding this asset qualification. On the one hand, he argues that Mrs. Morris does not possess that qualification, yet, on the other hand, he contends that the respondent included it in the SMC to favour her. If Mrs. Morris did not possess that qualification, as the complainant argues, it would not have been logical for the respondent to include it in the SMC if it wanted to favour her.

The acting appointment to the Issues Manager position

59 Larry Dart was the Regional Director of Corporate Services in Toronto at the time of the appointment process. He was responsible for all human resources functions. He testified that the respondent's practice was not to have someone from outside OBS seconded or given an acting opportunity to that office. He told Mr. Krick it was not wise to ask an employee who did not work at the OBS to act in a position in that office since the respondent was trying to regain the confidence of employees after having had staffing issues.

60 Mrs. Morris acted in the Issues Manager PM-05 position in Marine Safety at Transport Canada from February 26, 2007, until June 17, 2007. The complainant contends that Mr. Krick created that position and gave her an acting opportunity to the position so she could acquire knowledge and experience in marine safety in order to prepare her for a future indeterminate appointment to the OBS Manager position.

61 Mr. Krick explained that the respondent created the Issues Manager position because the Marine Safety Branch inherited new responsibilities when the Canada Shipping Act, S.C. 2001, c.26, was amended. The Branch needed to provide outreach services to small commercial vessel owners and operators. The duties of that acting appointment were completely unrelated to the duties of the OBS Manager position. Mrs. Morris' duties in the Issues Manager position were to liaise with operators of small commercial vessels and with the Ontario Provincial Police regarding enforcement issues and collecting data on small commercial operators. None of her duties in that position included working with pleasure crafts and she had no budgetary, human resources or supervisory responsibilities. By contrast, the OBS Manager is responsible for pleasure craft outreach programs and is responsible for the budget, staffing and supervision. Both the clients and the jobs were different.

62 Mr. Krick added that the position was offered to an employee who did not work at the OBS because employees in OBS were already fully occupied.

63 The Tribunal finds that the complainant has not established how Mrs. Morris' acting appointment to the Issues Manager position would have given her an unfair advantage in a future appointment process to the OBS Manager position. Mr. Krick's undisputed testimony is that the two positions are different in nature and have different clients, responsibilities and duties.

Issue III:  Was Mr. Huras a personal friend of the appointee's husband, and if so, does it give rise to a reasonable apprehension of bias?

64 The complainant contends that Mr. Huras favoured Mrs. Morris because Mr. Huras had a close relationship with Mrs. Morris and her husband.

65 Mrs. Morris testified that her husband and Mr. Huras were "acquaintances". Mr. Huras and her husband attended the Coast Guard College together. Mr. Huras was also the best man at her husband's wedding to his previous wife in 1971. She added that Mr. Huras attended her wedding to Geoff Morris in 2005. In November 2007, Mr. Huras also attended her husband's 60^th birthday party which she organized. She further testified that she was not friends with Mr. Huras. She worked with Mr. Huras once and found that he was not very cooperative. She and her husband had only seen Mr. Huras socially four times in the last ten years.

66 Mr. Krick and Mr. Dart both testified that Mr. Huras did not tell them about his personal relationship with Mr. Morris.

67 Mr. Dart stated that, after the appointment process was advertised, but before the assessment of candidates began, the complainant informed him that Mr. Huras had "an external relationship" with Mrs. Morris' husband. Mr. Dart testified that he discussed the matter with Mr. Krick and the latter stated that there were a lot of external relationships among employees in Sarnia. For example, some played golf together. So it was decided that the composition of the assessment board respected public service policy. However, the respondent decided that it was preferable to a have a person from outside the region sit on the assessment board to protect the integrity of the appointment process. That is why the respondent asked Ms. Miller to join the assessment board. She was one of the more senior officers and she did not work in the Sarnia Region; she worked in the Toronto Office. Mr. Dart added that, other than the complainant's comment, there was no other proof at that time that Mr. Huras had a relationship with Mrs. Morris or Mr. Morris, so the appointment process proceeded.

68 The respondent submits that personal relationships did not play any part in the appointment process. Mr. Huras was the best man at Mr. Morris' first wedding, but their relationship declined over the years. Mrs. Morris and her husband saw Mr. Huras socially only four times in the past ten years. In a small city such as Sarnia, employees are bound to know each other. The respondent emphasized that the assessment of candidates was not dependent on Mr. Huras since it was established through a consensus among assessment board members. Furthermore, although Mr. Huras was a member of the assessment board, he was not the staffing sub-delegated manager. Mr. Krick had that authority and he made the final decision to appoint Mrs. Morris.

69 The Tribunal has determined in previous decisions that the appearance of bias constitutes an abuse of authority (see Denny v. Deputy Minister of National Defence, 2009 PSST 0029, at para. 125, where the Tribunal referred to the test for reasonable apprehension of bias set out in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369. In a more recent decision, Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL), at para. 22 (QL), the Supreme Court articulated the test as follows: "[...] whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator." This objective test also applies to assessment board members. (See, for example, Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010 at paras. 64-71).

70 Transparency and fairness are two of the values in the preamble of the PSEA that guide the staffing process. (see Gignac at paras. 67 - 68). 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. 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.

71 The Tribunal finds that there is no evidence that Mr. Huras had close personal ties with Mrs. Morris. The fact that he attended her wedding in 2005 does not indicate that he entertained a personal relationship with her.

72 However, the situation with Mrs. Morris' husband is quite different. Mr. Huras and Mr. Morris certainly had a close personal relationship in the past since Mr. Huras was Mr. Morris' best man at Mr. Morris' previous marriage in 1971. Generally, grooms choose a relative or a close friend to be their best man. Although personal relationships can dissolve over the course of time, in this case the evidence indicates that Mr. Huras and Mr. Morris kept up their personal relationship over the years and saw each other at some very significant times in Mr. Morris' personal life. Mr. Huras was invited to Mr. Morris' marriage to Mrs. Morris in 2005, and he was invited to Mr. Morris' 60^th birthday celebration in 2007.

73 The complainant called the Tribunal's attention to an interview that was held by Lynn Farbotko, a Human Resources Advisor, with Mr. Huras on August 25, 2008, in the course of the departmental investigation of this process. When asked whether any candidate had a close social relationship with an assessment board member, Mr. Huras answered that although he knew Mrs. Morris professionally for 15 years, he only knew her socially because she had married his "friend" three or four years ago. The term "friend" is telling as generally it refers to a close relationship between two persons. While the Tribunal indicated above that it will give little weight to the investigation report because the author was not called to testify, it does have some probative value because it accords with all of the other evidence that points to a relationship of friendship between Mr. Huras and the appointee's husband.

74 The Tribunal finds that it cannot draw any conclusion from the fact that Mr. Morris only met Mr. Huras four times in the past ten years. One can remain friends with a person without frequent contact.

75 The Tribunal finds that there was a close relationship between Mr. Huras and Mr. Morris. They were personal friends. Mr. Huras was an assessment board member and participated in the assessment of candidates. Mr. Huras had something to gain or lose in this appointment process. The success or non-success of Mrs. Morris in this appointment process could have affected his personal relationship with Mr. Morris. Applying the test of reasonable apprehension of bias set out by the Supreme Court, a reasonable informed bystander looking at this process would think that it is more likely than not that Mr. Huras could not decide fairly. Mr. Huras' close personal relationship with Mrs. Morris's husband therefore gives rise to a reasonable apprehension of bias.

Issue IV:  Did the respondent demonstrate bias against the complainant?

76 The complainant alleges that the assessment board was biased against him because of his involvement in denouncing irregular contracting practices in which his former manager was involved. According to the complainant, his former manager awarded contracts to a vendor from the private sector without following established guidelines. The complainant told Mr. Dart and others of these irregularities and it was his intervention that prompted an investigation into that matter. According to the complainant, the assessment board saw him as a troublemaker and retaliated against him for his whistleblowing.

77 The complainant told Mr. Krick about the irregular contracting practices, but Mr. Krick was not concerned about the matter. The complainant escalated the matter to Mr. Dart. Mr. Dart told him he would look into it.

78 Mr. Dart testified that the complainant called him to inform him about the contracting irregularities. Mr. Dart specified that the complainant was not the instigator of the investigation, as the complainant claims, since the decision to conduct an investigation had already been made when the complainant informed him of the irregularities. Mr. Dart conceded, however, that the complainant did play a role in pointing to those irregularities. Mr. Dart recommended to Ms. Taylor that the complainant's former manager's financial authority be withdrawn and Ms. Taylor agreed to do so. Mr. Dart added that the complainant was not the only employee who had issues with the complainant's former manager. Others had made allegations against that manager.

79 Mr. Krick testified that his relationship with the complainant was a normal employer/employee relationship. Mr. Krick added that the complainant's claim that the respondent retaliated against him in this appointment process did not make much sense since the complainant was found qualified in the three concurrent appointment processes in which he participated, this appointment process, another one for a Boat Safety Officer GT-04 position and one for a Boating Safety Specialist Program Officer PM-02 position. He was offered the GT-04 position, which he accepted.

80 Jane Garvin, who works at Transport Canada as a Boating Safety Specialist Program Officer, testified that when Mrs. Morris acted in the OBS Manager position before the appointment process was completed, Mrs. Morris gave her a post-it note from Mr. Krick with the name and phone number of the person of the private firm involved in the irregular contracts and asked Ms. Garvin to give that person display trailers (a display kiosk on wheels) for a business transaction. The Tribunal cannot infer from that evidence that Mr. Krick was involved in the contracting irregularities. The complainant did not establish who wrote that post-it note, when it was written or even what it means. The complainant has not provided sufficient context to determine whether that request was irregular. The fact that Mrs. Morris allegedly asked Ms. Gavin at that time to give the person a display trailer would not establish that either Mr. Krick or Mrs. Morris were involved in the contract irregularities. Moreover, in his testimony, Mr. Krick stated that he did not instruct Ms. Garvin to lend a display trailer to the contractor involved in the irregular contracts. The complainant has not adduced sufficient evidence to link Mr. Krick to the alleged contract irregularities.

81 The Tribunal finds that there is insufficient evidence that the complainant was viewed as a troublemaker or a whistleblower. It was not the complainant who instigated the investigation into the alleged contract irregularities since, as Mr. Dart testified, that investigation was already underway when the complainant informed Mr. Dart of the contracting irregularities.

82 The Tribunal finds that there is insufficient evidence to give rise to a reasonable apprehension of bias on the part of the assessment board members against the complainant. The Tribunal has already made its finding with respect to Mr. Krick's alleged involvement. The complainant has not suggested that the two other board members were involved in any way in those alleged irregularities, and the complainant's former manager was not involved in any way in this appointment process.

83 The Tribunal has determined that a reasonably informed bystander looking at the whole process and, specifically at the role of the assessment board members, would not reasonably apprehend bias on the part of the assessment board members. The complainant has failed to prove, on a balance of probabilities, actual or reasonable apprehension of bias against him.

84 Furthermore, there is also no evidence that the assessment board exercised any form of retaliation against the complainant in this appointment process for his whistleblowing. On the contrary, the assessment board found the complainant qualified in this appointment process and in the two other appointment processes that were conducted at the same time as this one, and he was offered a promotion to a GT-04 position, which he accepted.

Issue V:  Should the Tribunal take into consideration the reassessment of candidates?

The reassessment

85 Ms. El-Komos testified that when she realised, through the investigation report, that there had been an error in the assessment because of the use of global scoring, she recommended that candidates be reassessed and that if Mrs. Morris was found not qualified, her appointment be revoked. She discussed this with Ms. Taylor, Michael R. Stephenson, the A/Regional Director, and Richard Bégin, her Director, and they all agreed to this solution. Ms. Taylor added that she had decided not to recommend that the deputy head revoke Mrs. Morris's appointment because the Sarnia Office needed stability and continuity in personnel. She also took into account the fact that the appointment had been made more than one and a half years earlier.

86 The new assessment board was comprised of Michael J. Dwyer, Manager, Regional Director, Marine Safety, Ontario Region, who chaired the assessment board, John Murray, Manager, OBS, National Capital Region, and Liliane Trempe, Manager, Staffing Operations, Corporate Staffing, NCR. All of the new board members had extensive experience in participating in assessment boards, none of them were involved in the initial assessment of candidates, nor did they know the candidates in the appointment process.

87 Mr. Dwyer explained that the new assessment board used the same SMC as was used in the initial assessments. No global marking was used in the reassessment; there was a pass mark for each essential qualification. In the reassessment, the complainant failed leadership, an essential personal suitability qualification. Mrs. Morris passed all the essential qualifications. The rationale for the right fit was that Mrs. Morris met all the essential qualifications and scored the highest on all the personal suitability criteria.

The complainant's objection

88 The complainant argues that the Tribunal should not take into consideration the reassessment of candidates in this complaint. He only agreed to be reassessed because he had no choice. The complainant argues that by reassessing candidates, the respondent was superseding the authority of the Tribunal. It also deprived him of recourse rights that he would have had if the Tribunal had ordered corrective action. The complainant also argues that the reassessment was unfair since he was not properly accommodated during the reassessment and Mrs. Morris enjoyed an unfair advantage since she had occupied the position for more than two years by the time it took place.

89 The respondent argues that not only should the Tribunal take into consideration the results of the reassessment it should be the Tribunal's main focus in determining whether there was an abuse of authority. Section 15(3) of the PSEA provides that a deputy head can take corrective action when, after investigation, it is satisfied that an error occurred in an appointment process. In the respondent's view, any alleged irregularity that might have occurred in the first assessment, including the improper use of global marking and personal favouritism, were corrected by the reassessment. There cannot be any issues of favouritism in the reassessment since the assessment board was comprised of entirely different members who did not have any personal relationship with Mrs. Morris or the complainant. Global marking is not an issue either in the reassessment since the new assessment board did not use that form of marking. According to the respondent, there are strong policy reasons for allowing the Tribunal to consider the reassessment. It would encourage deputy heads to initiate investigations and take corrective action, where required, when the deputy head becomes aware of any anomalies in an appointment process following a complaint under s. 77 of the PSEA.

90 The PSC also argues that the Tribunal should take into consideration the reassessment of candidates in deciding whether there was an abuse of authority in this appointment process.

91 The Tribunal decided to hear the parties' evidence regarding the reassessment and reserve its decision on the complainant's objection.

92 For the reasons set out below, the Tribunal finds that it should not take into consideration the reassessment of candidates in determining whether there was an abuse of authority in the appointment process. Section 77(1) of the PSEA states the following:

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

(...)

93 Section 77 makes it clear that the appointment or proposed appointment is the subject of the complaint, and not other actions or events that may have occurred after that appointment or proposed appointment. Taking the reassessment into consideration in determining whether there was an abuse of authority could jeopardise the recourse process established by the Tribunal pursuant to its power set out in s. 109 of the PSEA to make regulations respecting the procedure for addressing complaints to the Tribunal. The Public Service Staffing Tribunal Regulations, SOR/2006-6 as amended by SOR/2011-116, provides for a structured recourse process that includes a thorough exchange of information and deadlines for filing allegations and replies to allegations. Under s. 98(1) of the PSEA, the Tribunal is required to proceed to consider and dispose of a complaint as expeditiously as possible. The Tribunal's complaint process could be unduly delayed if the Tribunal were to be required to wait for a deputy head investigation to be completed following a s. 77 complaint. For recourse to be meaningful there must be finality to an appointment process.

94 The mechanisms set out in ss. 77 and 15(3) of the PSEA operate separately since they are different in nature, have different purposes and have different grounds for revocation and corrective action. The complaint process set out in s. 77 provides employees with a third party neutral independent recourse, while the process under s. 15(3) does not. The purpose of s. 77 of the PSEA is to give employees a recourse right if they believe that the deputy head abused its authority in an appointment process. See Liang v. President of the Canada Border Services Agency, 2007 PSST 0033 at paras. 33 to 40. The purpose of s. 15(3) is to provide the deputy head with a mechanism that it can use at its discretion to correct errors, omissions or improper conduct in an appointment process. For example, s. 15(3) can be used to correct an error in an appointment process if none of the candidates in the appointment process brought a complaint under s. 77 of the PSEA. These processes were not designed to operate together. The deputy head's authority under s. 15(3) of the PSEA is not a substitute for recourse granted under s. 77 of the PSEA.

95 The Tribunal will therefore not take into consideration the reassessments of candidates in determining whether there was an abuse of authority in the appointment process.

96 The next question is whether the Tribunal should take into consideration the reassessment of candidates for the purpose of s. 81(1) of the PSEA, which provides that when the Tribunal has determined that a complaint is substantiated, it can order the Commission or the deputy head to revoke the appointment or not make the appointment, and to take any corrective action that the Tribunal considers appropriate.

97 The Tribunal has determined in past decisions that it can take into consideration actions taken by the respondent after a complaint is lodged in determining whether to order the revocation of an appointment or corrective measures. In Morgenstern v. Commissioner of the Correctional Service of Canada, 2010 PSST 0018, for example, there was no need for the Tribunal to order that the deputy head revoke the appointment since the respondent in that case had already revoked the appointment.

98 In this case, however, the Tribunal finds that revocation of Mrs. Morris' appointment is the appropriate order. The Tribunal found that the respondent has abused its authority as the appointee did not meet the essential qualifications of a position, and there was an apprehension of bias. The Tribunal does not consider that the reassessment of candidates addresses properly the finding of abuse of authority in this case. The respondent should have revoked the appointment, proceeded with a new appointment process to fill the position following the revocation if it wished to do so, and post recourse rights if applicable.

99 Since the Tribunal has determined that it will not take the reassessment into consideration, it will not comment on the complainant's allegation that he was improperly accommodated during the reassessment and his allegation that Mrs. Morris had an undue advantage in the second assessment. As well, the Tribunal will not consider the monetary remedy sought by the complainant for the alleged failure to accommodate him during the reassessment.

Decision

100 For all of these reasons, the complaint is substantiated.

Corrective Action and Order

101 The Tribunal orders the Deputy Head to revoke Mrs. Morris' appointment within 90 days of this decision.

John Mooney
Vice Chairperson

Parties of Record

Tribunal File:

2007-0380

Style of Cause:

Nicolas Marcil and the Deputy Minister of Transport, Infrastructure and Communities

Hearing:

March 2, 3 and 4, 2010;
Sarnia, Ontario
June 15, 16, 17 and 18, 2010; and April 19, 2011
Ottawa, Ontario

Date of Reasons:

October 20, 2011

APPEARANCES:

For the complainant:

Nicolas Marcil

For the respondent:

Sean Kelly

For the Public
Service Commission:

John Unrau