FPSLREB Decisions

Reasons for Decision

Introduction

1 Edith Baragar, the complainant, applied in an internal advertised appointment process for the position of Pre-Removal Risk Assessment Officer (PRRA Officer) at the PM-04 group and level with the Department of Citizenship and Immigration Canada (CIC). She alleges that the Deputy Minister of CIC, the respondent, abused its authority in the assessment of her application by finding her unqualified, by failing to correct errors that were brought to its attention during the informal discussions, and by appointing a candidate who did not meet the experience requirement.

2 The respondent denies the allegations and states that the complainant was eliminated from the appointment process because she did not demonstrate in her application that she met two essential experience qualifications. The respondent also states that it did not make any errors or mistakes in its assessment that required correction. Finally, the respondent asserts that the appointee in question met the essential qualifications.

3 The Public Service Commission (PSC) did not appear in this matter, but presented a written submission on relevant PSC policies and guidelines concerning assessment and selection, and informal discussions, among other topics. It took no position on the merits of the complaint.

4 For the reasons set out below, the complaints are dismissed. The Public Service Staffing Tribunal (the Tribunal) finds no evidence of abuse of authority in the decision to eliminate the complainant from the appointment process and there was no evidence that unqualified candidates were appointed.

Background

5 On September 1, 2009, the respondent posted two Job Opportunity Advertisements (JOA) on Publiservice for PRRA Officer at the PM-04 group and level, with a closing date of September 15, 2009. These appointment processes were identical except for the linguistic requirements. One of the appointment processes (09‑IMC-IA-ONT-PRRA-01) had the linguistic requirement “English essential” while the other was bilingual imperative, (09-IMC-IA-ONT-PRRA-06).

6 The JOA stated that applicants had to clearly demonstrate on their application that they met all the listed essential criteria and were within the designated area of selection. Failure to do so could result in the rejection of their application. “Experience” was one of the essential criteria.

7 In the “Other Information” (Notes) section of the JOA were the following advisories, in capital letters:

IT IS THE RESPONSIBILITY OF THE CANDIDATE TO SUBMIT A COVER LETTER WHICH CLEARLY OUTLINES THAT THEY MEET EACH OF THE SCREENING CRITERIA (I.E. ALL ESSENTIAL EDUCATION AND EXPERIENCE QUALIFICATIONS, AS WELL AS ANY ASSET QUALIFICATIONS).  PLEASE NOTE THAT IT IS NOT SUFFICIENT TO ONLY STATE THAT THE REQUIREMENT IS MET OR TO PROVIDE A LISTING OF CURRENT RESPONSIBILITIES.  THE CANDIDATE MUST PROVIDE CONCRETE EXAMPLES THAT ILLUSTRATE HOW THEY MEET THE REQUIREMENTS.

                                    .....................

PLEASE DESCRIBE IN DETAIL WHEN AND WHERE YOU GAINED 1) EXPERIENCE ADMINISTERING THE IMMIGRATION AND REFUGEE PROTECTION ACT OR THE CITIZENSHIP ACT AND 2) EXPERIENCE IN MAKING DECISIONS IN CITIZENSHIP AND IMMIGRATION CASES OR PRESENTING EVIDENCE AT IRB HEARINGS.

8 On September 5, 2009, the complainant applied to both processes providing identical information in each application. Under the heading experience, the complainant stated:

I have been administering IRPA since its inception with the exception of 3 years that I was presenting evidence at IRB hearings. The last 20 months I have been working at LBPIA as a Border Services Officer administering IRPA. The 20 months I have been working as a BSO meets the experience requirement stated in the poster. I also worked as a PRRA officer for twelve months and during that time there were absolutely no issues with my performance. This meets the stated asset qualification of having experience as a PRRA officer. I have also, as stated worked at the IRB as a Refugee Protection Officer and later a Tribunal Officer and this therefore meets the asset qualification of having experience presenting cases before an administrative tribunal.

9 On October 1, 2009, the complainant was informed by the respondent that she would not be considered further in this appointment process involving both the English essential and the bilingual positions because she did not meet two experience criteria. These were “recent experience administering the Immigration and Refugee Protection Act (IRPA) or the Citizenship Act”, and “recent experience in making decisions in citizenship or immigration cases or presenting evidence at Immigration and Refugee Board (IRB) hearings”. “Recent experience” was defined as “at least 12 consecutive months within the last 3 years.”

10 Upon receipt of the October 1, 2009, email notifying her of her elimination from the appointment process, the complainant asked for an informal discussion to learn why the decision was taken. On October 9, 2009, she had a telephone conversation with one of the assessment board members and followed up with an email to the Human Resources Advisor. In her email, the complainant invited the assessment board to contact her manager to confirm her experience, recorded her dismay about how she was treated, and provided details about how she administered the IRPA at Pearson International Airport.  She asked for another assessment.

11 The board reconvened to review her application but did not alter its initial decision. On October 19, 2009, the complainant was informed in writing, with detailed reasons, that the assessment board had reconsidered her application but had not changed its initial decision to screen her out of further consideration.

12 On November 29, 2010, a Notice of Appointment or proposed appointment was posted and the complainant filed a complaint under s. 77 (1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss.12, 13 (PSEA).

Issues

13 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority in its assessment of the complainant’s application?
2. Did the respondent abuse its authority by failing to consider information that the complainant provided during informal discussion?
3. Did the respondent abuse its authority in the application of merit by appointing a candidate who did not meet the experience requirements?

Analysis

14 Abuse of authority is not defined in the PSEA. However, s. 2(4) of the PSEA offers the following guidance: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

15 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal established that abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority.

16 Abuse of authority can also include errors. See Kane v. Attorney General of Canada and Public Service Commission, 2011 FCA 19 at para. 64. Whether an error constitutes an abuse of authority will depend on the nature and seriousness of the error in question.

17 Section 36 of the PSEA provides delegated managers with broad discretion in choosing and using assessment methods to determine whether an individual possesses the required qualifications. This authority is not absolute. Thus, it may find that there is abuse of authority if, for example, it is established that the assessment method has a fundamental flaw. Assessment methods that do not assess qualifications or are unreasonable, discriminatory or produce a result that is unfair can constitute an abuse of authority (Ouellet v. President of the Canadian International Development Agency, 2009 PSST 0026).

Issue I: Did the respondent abuse its authority in its assessment of the complainant’s application?

18 The complainant submits that the experience aspects of her résumé were similar to those of the successful candidate but the respondent did not consistently assess the résumés. As a consequence, the complainant alleges that the respondent unfairly screened out her application.

19 The complainant testified that she applied for the position of a PRRA officer and was disappointed when the respondent concluded that she did not possess the required experience.

20 The complainant testified concerning her career, commencing in 1998 when she became a Client Service Officer in Vegreville, Alberta. In 2000, she transferred to a position at Pearson International Airport. She also worked in Etobicoke as an Inland Immigration Officer and was a Refugee Protection Officer on three assignments. In 2006-2007, she worked as a PRRA officer.

21 In her testimony, the complainant summarized her recent experience as being a Pre-Removal Risk Assessment officer in 2006, until February 2007. She then became a Refugee Protection Officer and presented evidence at IRB hearings until the end of December 2007. In 2008 she worked at Pearson International airport for 20 months. During that time span, she administered the Act. She made study permit, work permit decisions, eligibility decisions, refused entry, detained people and set conditions for the release of people and admitted people.

22 The complainant added that her decisions can be reviewed by other Immigration Officers and they can be appealed to the IRB. Other decisions are reviewed by her superintendent in accordance with the instruments of delegation.

23 Her application, which included a cover letter and résumé, identified the period from 2004 to December 2007 as the three-year span when she did not administer the IRPA. The complainant acknowledged that she did not provide the months and the year that comprised the 12-month period in which she worked as a PRRA Officer.

24 The complainant pointed to her résumé, which outlined her functions as a Border Services Officer. She stated that reports flow from decisions; and reviewing other officers’ decisions means making a decision about the correctness of the first decision. All of these decisions are outlined in legislation. She stated that by performing these tasks she was administering the IRPA. However, she acknowledged in cross examination that not all Border Services Officers perform functions under the IRPA. For example, some Border Services Officers administer legislation relating to agriculture and plants. The complainant also acknowledged that not all Border Services Officers are authorized to review the decisions of their fellow officers.

25 When asked to identify concrete examples in her résumé, the complainant said that writing reports and deciding on the charges/violations are concrete examples of how she administers the IRPA. The complainant was questioned about the fact that her application did not state that she made decisions when she wrote reports. The complainant maintained that administering the IRPA means making decisions.

26  Under further cross-examination, the complainant was also confronted with the fact that administering and decision-making are two separate criteria in the poster. The complainant replied that “they are identified as separate but they are either/or; you could have experience. Making decisions and administering the Immigration Act are one and the same.” The complainant then acknowledged that neither her cover letter nor her résumé stated that she has delegated authority as an Immigration Officer or that she makes decisions daily.

27 Barbara Sachs-Syer testified at the hearing. She was a CIC supervisor with 23 years of experience when she took on an assignment in the fall of 2009 to prepare JOAs and hire staff. She had previously worked as an Immigration Officer, Immigration Clerk, Post-claim Officer, PRRA Officer, and Refugee Protection Officer.

28 Ms. Sachs-Syer was on the three-person assessment board that received more than 200 applications for the two appointment processes. She described the procedure used to assess the applications and noted that if a board member knew or had a reporting relationship with an applicant, that board member withdrew from assessing that applicant. She also stated that the same procedure was used to assess all applicants. She reviewed the applications of the persons who were appointed to positions and highlighted how they met the criteria and how the information in their applications differed from the information provided by the complainant.

29 Ms. Sachs-Syer stated that she did not know the complainant nor did she receive any information from managers at CIC regarding how her application should be assessed. When she reviewed the complainant’s application, which included the cover letter and résumé, she noted that there were no concrete examples concerning the IRPA. She said that she was looking for recent experience in administering the IRPA ‑ clear examples of the time frame and clear examples of where the candidate had made decisions during the September 15, 2006, to September 30, 2009, period. Therefore, she screened the complainant’s application out of the appointment process. Under “experience” the letter does not speak to the “how”. She added that “if an applicant could tell us what decisions were made and how they were made, that would suffice”.

30 Ms. Sachs-Syer also testified that the résumé did not speak to presenting evidence at IRB hearings. She added that, in accordance with their screening process, another board member, Anna Miguel, also reviewed the complainant’s application and concurred in the decision to reject the application. Ms. Miguel was a manager in the PRRA unit.

31 The complainant’s position is that she met the experience requirements. She submitted that describing her duties as a port of entry officer, such as processing visitors and permit applicants, would also convey the fact that she made decisions under the IRPA to the informed reader. The respondent maintains that the complainant failed to provide concrete examples to support the claim that she had the required experience and the assessment board’s decision to eliminate her was correct. It also maintains the view that the complainant’s application was assessed in accordance with the instructions set out in the JOA and the Statement of Merit Criteria, and these procedures were uniformly applied to all applicants.

32  The Tribunal finds that the respondent has provided a complete and reasonable explanation for the elimination of the complainant from the appointment process. The method for assessing the experience requirement was set out in the JOA. Candidates were asked to indicate how they met the essential education and experience qualifications in their application. Candidates were advised that merely stating their current responsibilities or that the requirement was met would not be enough to satisfy the experience and education qualifications. They were asked to provide concrete examples to illustrate how they meet the requirements and they were asked to describe in detail when and where they gained their experience in administering the IRPA, or the Citizenship Act. Candidates were clearly advised that their failure to do so may result in the rejection of their application. Given the anticipated high volume of applications in response to the two JOAs, the board considered this method was appropriate for efficiently screening candidates. The Tribunal finds that the assessment method used to assess education and experience was appropriate in these circumstances.

33 The complainant relied on her description of her duties in maintaining that she complied with the instructions. However, she was unable to identify any examples in her application where she demonstrated how she administered the IRPA. The evidence indicated that there are numerous positions within CIC and Canada Border Services Agency that are considered to be Immigration Officer positions, yet the duties performed in various officer positions are distinct. The Tribunal has held in several decisions that it is a candidate’s responsibility to clearly demonstrate in their application that they meet all the essential qualifications. See for example, Edwards v. Deputy Minister of Indian and Northern Affairs Canada, 2011 PSST 0010; Lirette v. Deputy Minister of National Defence, 2011 PSST 0042. The assessment board was not required to assume the duties and tasks involved in processing visitors and applicants for permits, particularly when candidates were told that they must demonstrate with concrete examples that they meet the essential criteria.

34 The Tribunal finds that the respondent did not err in concluding that the complainant’s application, including the cover letter and the résumé, lacked the details that had been requested. The complainant associated writing reports as a concrete example of how she administered the IRPA by making decisions and deciding on whether and what charges to lay. However, the complainant did not provide any specific examples to illustrate how the circumstances that caused her to write the report or the decision to charge demonstrated that she administered the IRPA. These were the concrete examples that the respondent required to illustrate how the qualifications were met. These requirements placed on applicants were reasonable. The respondent did not abuse its authority when it assessed the complainant’s application.

Issue II:  Did the respondent abuse its authority by failing to consider information that the complainant provided during informal discussion?

35 Section 47 of the PSEA provides a mechanism for informal discussion at a candidate’s request between the Deputy Head and a candidate who has been eliminated from consideration for appointment.

36 Informal discussions are provided to give unsuccessful candidates an opportunity to learn why they were not qualified. While informal discussion may provide an opportunity for an assessment board to correct errors (Kitchen v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0028), there is no requirement to reassess a candidate (Henry v. Deputy Head of Service Canada, 2008 PSST 0010). Although informal discussion is part of the process, it is not part of the assessment itself (Carnegie v. Deputy Minister of Citizenship and Immigration Canada, 2009 PSST 0006).

37 The complainant testified concerning the email she sent after informal discussion. She stated that she was offended because the selection board had apparently dismissed her 10 years of experience, and was unaware of the responsibilities of an Immigration Officer. The complainant also expressed the view that the responsibility of the assessment board is not to assess every candidate in the same manner. Rather, their job is to assess each candidate accurately.

38 The complainant argues that the respondent knew that the assessment board erred in eliminating her from consideration for appointment, or was provided with information during the informal discussion that identified an error in her assessment, but failed to intervene. This failure, she alleges, constitutes an abuse of authority. The complainant maintains that departments are required to implement a proper administrative review as part of their staffing regime. The respondent’s review, according to the complainant, was flawed because it failed to correct errors of fact and law. The complainant submits that the review process was unfair and constituted an abuse of discretion which is tantamount to an abuse of authority.

39 The complainant also contends that the decision to exclude her from the process was made on an incorrect apprehension of the facts, and, that the respondent failed in its duty to be satisfied or to ensure that the decision makers exercised their discretion properly. The complainant maintains that the respondent is unable to show that the decision concerning her candidacy was not arbitrary, and argues that if the review were properly conducted, she would have been found qualified. In her submission, the respondent was required to show that discretion was properly exercised and that the merit principle was respected. According to the complainant, the respondent’s failure to implement this system results in an abuse of authority.

40 The essence of the complainant’s position is that the board should infer from her title and the description of her duties in her application that she met the experience criteria. Further, she contends that the board was obliged to follow-up and confirm with her manager that she had the required experience and by not doing so, fettered its discretion resulting in an abuse of authority.

41 The complainant was entitled to be properly assessed on the basis of her application document, just as every other candidate in the process. She did not acquire a right to a further assessment either by providing additional details in her subsequent emails or by identifying her manager as a reference to support her claim of acquired experience. By supplying this additional information after being eliminated from the appointment process, the complainant could not expect the respondent to further assess her experience. The complainant was eliminated because she failed to provide the required information as stated in the instructions set out in the JOA.

42 Faced with the complainant’s assertion, the board re-convened to review the application and it confirmed its earlier ruling. There was no evidence of administrative review by another authority and no evidence led to suggest that the board or anyone else fettered its discretion in assessing her application by refusing additional information to that provided by the complainant in her application.

43 Consequently, the Tribunal is of the view that the assessment board properly exercised its discretion by reviewing the complainant’s application without the additional information. This second review confirmed the assessment board’s prior decision, that the complainant had not demonstrated that she had the required experience.

Issue III:  Did the respondent abuse its authority in the application of merit by appointing a candidate who did not meet the experience requirements?

44 The complainant alleges that Craig Gloster, who was appointed to a position from this process, lacked an essential experience requirement, namely that he did not administer the IRPA for a 12-month period. Thus, the board erred in finding that he met this experience requirement and abused its authority by making a non-meritorious appointment.

45 The Tribunal's jurisprudence has established that the complainant has the burden to prove, on a balance of probabilities, that there was an abuse of authority in relation to an internal appointment process made under s. 77 of the PSEA (see for example, Tibbs, at paras. 49 to 55).

46 Under questioning, the complainant was asked to identify the evidence that pointed to Mr. Gloster’s lack of experience in administering the IRPA. The complainant answered that she did not have any evidence to prove the appointee’s lack of experience. She only had suspicions because of the results. Ms. Sachs-Syer’s testimony provided a detailed explanation of how the board members assessed Mr. Gloster’s application, which was an exhibit in these proceedings and how he met the requirements. Her evidence was not challenged on this point.

47 The Tribunal finds that the complainant has not demonstrated that the assessment board improperly exercised its authority in assessing the appointee’s experience. The complainant has presented no evidence that would call into question the determination made by the assessment board or contradict the evidence concerning Mr. Gloster’s qualifications. Thus, there is no foundation for substantiating this allegation.

Decision

48 For all these reasons, the complaints are dismissed.

Eugene Williams
Member

Parties of Record

Tribunal File:

2010–0711/0712/0713 and 2011‑1084

Style of Cause:

Edith Baragar v. the Deputy Minister of Citizenship and Immigration Canada

Hearing:

March 7,8 and 9, 2012 and May 7, 2012
Toronto, Ontario
And written submissions

Date of Reasons:

September 11, 2012

APPEARANCES:

For the complainant:

Edith Baragar and Harjinder Chahal

For the respondent:

Karen Clifford

For the Public
Service Commission:

John Unrau
Written submission