Reasons for Decision

Introduction

1 Peter Taticek, the complainant, participated in an internal advertised appointment process for the position of IT Team Leader/Project Leader, a CS-03 position (the CS‑03 position) with the Canada Border Services Agency (CBSA). He alleges that the President of the CBSA (the respondent) abused its authority in the conduct of the assessment process. He alleges firstly that there were anomalies in the process of selecting individuals from the pool of candidates (the CS-03 pool), secondly that one selected candidate did not meet the essential qualifications for the position, and thirdly that personal favouritism was shown by altering the official language requirements of a position to accommodate the appointment of a candidate.

2 The respondent denies that there was abuse of authority in the appointment process. It asserts that the process of selecting candidates from the CS-03 pool was done correctly, that it did not appoint an unqualified person, and that the official language requirements of a position were changed for operational reasons and not to favour any candidate.

3 The Public Service Commission (PSC) did not appear at the hearing, but did present a written submission in which it discussed law and policy concerning appointment processes, assessment and selection. It took no position on the merits of the complaints.

4 After considering the evidence which is set out below, the Public Service Staffing Tribunal (the Tribunal) concludes that the complainant has failed to prove that the respondent abused its authority. The complaints are dismissed. The respondent was exercising its discretion reasonably when it used different methods to select candidates who met the essential qualifications from the pool. Secondly, the allegedly unqualified candidate was shown to meet the essential qualification in issue. Finally, there was no evidence that the change to the official language requirement for the position to which one candidate was appointed was influenced by considerations of personal favouritism.

Background

5 In 2008, CBSA issued a Job Opportunity Advertisement on the Publiservice website for an internal advertised appointment process for the CS‑03 position. The Statement of Merit Criteria listed the essential qualifications and the asset qualifications for the position, with the notation that “(a)pplicants must demonstrate on their application which of the following asset criteria they meet, if any”. Candidates who were assessed and found to meet the essential qualifications were placed in the CS-03 pool. This included the complainant. As CS-03 positions became available, candidates were referred for further consideration. Managers could utilize a form entitled “Candidate referral request to staff from an advertised process” (the referral form) to select candidates from the CS-03 pool for further consideration.

6 The complainant brought 15 complaints under para. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA) concerning this appointment process. The complaints were consolidated for the purpose of these proceedings, in accordance with s. 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116.

Preliminary matters

7 Two preliminary matters are dealt with below. The first of these involves documents that were initially excluded when they were introduced during the hearing. The second is an application for the recusal of the Tribunal Member.

8 For the reasons that follow, the Tribunal accepts into evidence the two documents at issue and denies the request for the Member to recuse herself.

(i) Admissibility of documents

9 During the scheduled hearing of this complaint, the complainant sought to introduce two documents. The first document was an email from Marc Labelle, a Human Resources Advisor at CBSA, concerning the manner of referring L. Willmott from the CS-03 pool to the hiring manager (the Willmott document). The second document was an email exchange between the complainant and C. Doyon, the acting Director of Employment Equity and Official Languages Programs with CBSA regarding a change in the official language requirements of the position to which E. Sousae was appointed (the Sousae document).

10 At the hearing, the parties disagreed as to whether these two documents had been exchanged as agreed prior to the hearing. The Tribunal ruled that it would not accept the documents on the basis that there was no clear indication that the complainant had provided them to the respondent and it would be prejudicial to accept them into evidence at this stage.

11 Subsequent to the hearing, counsel for the respondent contacted the Tribunal to indicate that she had made a mistake and, in fact, both the respondent and the PSC indeed had received the documents from the complainant prior to the hearing.

12 On January 10, 2012, the Tribunal issued a letter of direction to the parties, informing them that it would re-open the hearing to receive submissions on the admissibility of the documents. At the request of the parties, the Tribunal then directed the parties to make written submissions.

13 The complainant’s submission did not address the relevance of the documents or their admissibility. Rather, the complainant argued that the actions of the respondent’s counsel were a foundation for a new hearing. He also asked that the Tribunal Member recuse herself on the basis of the original ruling to exclude the documents.

14 The respondent submitted that the Willmott document was not relevant to this matter as there was no complaint concerning Mr. Willmott’s appointment. Similarly, the respondent submitted that the Sousae document was not relevant as C. Doyon was not at any time proposed as a witness by the complainant. Further, it took the position that the original official language requirement was Bilingual Imperative, and the complainant did not possess the required language proficiency and, therefore, had no personal interest in being appointed to the position.

15 The PSC, while taking no position on the admissibility of the documents, noted that the complainant had not made submissions going to the issue of how the documents were relevant to his allegations.

16 Section 99(1)(d) of the PSEA allows the Tribunal to accept any evidence, whether admissible in a court of law or not. The Willmott document is relevant to the complainant’s allegation concerning the manner of selecting candidates from the CS‑03 pool. While the complainant did not address its relevance or argue for the admissibility of the document, on its face, the document deals with the subject of selecting a candidate from the CS-03 pool.

17 The Tribunal also accepts the Sousae document. It is linked to the official language requirement for the position to which Mr. Sousae was appointed. The complainant has complained about this appointment and alleged that the change of official language requirement for the position to which Mr. Sousae was appointed was an act of personal favouritism.

(ii) Recusal request

18 The complainant has requested “a new hearing and a new adjudicator to hear the information as intended in a fair and impartial fashion.” The Tribunal considers this to be an application for the Tribunal Member to recuse herself on the basis that she demonstrated bias in accepting the submissions of respondent’s counsel when ruling on the admissibility of the impugned documents.

19 The respondent replied to the motion indicating that the Tribunal Member was seized of the case and no basis had been shown for recusal. The PSC took no position on the complainant’s request for the member’s recusal.

20 In Arthur v. Canada (Attorney General), 2001 FCA 223, at paragraph 8, the Court held:

[8] (…) An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard.

21 Further, as the Court held in Murray v. Canada (Human Rights Commission), 2004 FC 1541, at paragraph 22, “(t)he test for actual bias requires a direct showing of bias such as a clear statement which confirms that bias.” There is no evidence of actual bias on the part of the Tribunal Member in this case.

22 The test for reasonable apprehension of bias is well-established. In Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, writing in dissent, Mr. Justice de Grandpré stated, at page 394:

… the 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. In the words of the Court of Appeal that test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude? Would he think that it is more likely than not that (the decision-maker), whether consciously or unconsciously, would not decide fairly.

23 The question the Tribunal must address is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it was more likely than not that the Tribunal Member would not decide the complaint fairly.

24 The complainant has not demonstrated that the Tribunal’s original decision was influenced by improper considerations. The original ruling of the Tribunal was made on the basis of the submissions of the parties at that time. When the respondent’s counsel contacted the Tribunal after the hearing to advise that her initial submission was based on a mistake the matter was re-opened, the initial ruling was reconsidered and it was reversed. The complainant’s disagreement with the original ruling is not a basis for the Tribunal Member to recuse herself. The Tribunal finds that the complainant has failed to provide any evidence to meet the test of reasonable apprehension of bias. It has not been demonstrated that the Tribunal member, consciously or unconsciously, would not decide fairly. The application is denied.

Issues

25 The Tribunal must decide the following issues:

1. Did the respondent abuse its authority in the manner of selecting candidates for referral from the CS-03 pool?
2. Did the respondent abuse its authority by appointing a candidate who did not meet the essential qualifications for the position?
3. Did the respondent abuse its authority through personal favouritism by altering the official language requirement of a CS-03 position to benefit a candidate?

Analysis

26 Section 77(1)(a) of the PSEA provides that:

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

1. 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); …

27 The phrase “abuse of authority” is not defined in the PSEA. However, s. 2(4) provides that it includes bad faith and personal favouritism.

Issue I: Did the respondent abuse its authority in the manner of selecting candidates for referral from the CS-03 pool?

28 The complainant alleged that there were flaws in the method of selecting candidates from the CS-03 pool. As described above, managers completed a referral form to request candidates from the CS-03 pool for further consideration. Mr. Labelle reviewed the referral form and explained that it was divided into five sections. The information recorded in sections C, D, and E allowed the hiring manager to rank the three most important essential qualifications for the position to be staffed, list the asset criteria that he or she would apply and indicate the number of referrals to be made. Mr. Labelle testified that CBSA commonly conducted collective appointment processes such as this one, and then used a referral form to select candidates from the pool for further consideration.

29 Mr. Labelle then described the process of selecting candidates for referral. Firstly, the asset criteria listed in section D would be applied. Only candidates who had indicated that they possessed the assets would be considered further. This group would next be screened in a “top down” method based on their scores for the essential qualifications that were identified as the most important in section C. Then these candidates would be referred to the hiring manager to complete the assessment process and identify a candidate for appointment.

30 The complainant expressed his concern that a manager could by-pass the use of the referral form and obtain a candidate of his choosing by directly asking for a candidate to be referred. He submitted the Willmott document as evidence of this practice. The Willmott document clearly shows that a hiring manager requested the inclusion of Mr. Willmott with the other referrals although he did not meet the “top down” criteria set out in the referral form. Although the Willmott document indicates that after being referred, Mr. Willmott was selected for an acting appointment, there is no complaint against Mr. Willmott’s appointment. The complainant’s concern is confined to the method used to refer Mr. Willmott.

31 The Tribunal finds that the complainant has failed to establish an abuse of authority in the use of different methods to select candidates from the CS-03 pool for further consideration. The Tribunal has previously held that managers have a broad discretion under s. 36 of the PSEA to select and use the assessment methods that will determine whether a candidate meets the qualifications for a position. (See Visca v. Deputy Minister of Justice et al., 2007 PSST 0024, at para. 51). It has not been shown that managers were restricted to using the referral form as the sole method for referral of candidates for further consideration. The fact that Mr. Willmott was referred from the CS-03 pool based on a manager’s request rather than through the referral method described above, does not constitute an abuse of authority.

Issue II: Did the respondent abuse its authority by appointing a candidate who did not meet the essential qualifications for the position?

32 The complainant alleged that Parveneh Hashemi did not meet the essential qualification of Leadership. He based his assertion on the fact that she received 2 marks of 10 in the interview portion of the assessment for Leadership. In the complainant’s view, her name should not have been placed in the pool and she should not have been referred to a manager for further consideration.

33 Greg Cameron, the chairperson of the assessment board, testified concerning the assessment of Leadership. He indicated that it was assessed using both an interview and reference checks, which were weighted 30% and 70% respectively. He stated that he considered a reference check which described past performance to be a better indicator of Leadership than a candidate’s response to an interview question. The interview and the reference check were each marked out of 10 marks and the pass mark for Leadership was set at 60% overall. Mr. Cameron noted that Ms. Hashemi received 2 marks for the interview and 8 marks for the reference check. When weighting was applied to these scores, Ms. Hashemi’s final score was a passing score of 6.2 out of 10 or 62% and exceeded the required minimum score. The complainant did not challenge this explanation.

34 The Tribunal finds no abuse of authority in the appointment of Ms. Hashemi. The interview score is not a complete representation of the assessment of Leadership. The unchallenged evidence of Mr. Cameron showed that when the weighted scores awarded for both of the assessment tools were considered, Ms. Hashemi’s score for Leadership exceeded the pass mark. Her appointment did not contravene the requirement in s. 30 of the PSEA that appointments be made on the basis of merit, and the Tribunal finds that this allegation is unfounded.

Issue III: Did the respondent abuse its authority through personal favouritism by altering the official language requirement of a CS-03 position to benefit a candidate?

35 Mr. Sousae was a candidate in this appointment process and he was appointed to a CS-03 position. It is the complainant’s position that the respondent altered the official language requirement of the position to which Mr. Sousae was appointed to personally favour Mr. Sousae.

36 At the time of Mr. Sousae’s appointment, Diane Billey was the Director of Commercial Product Support. Wilson Seto, the hiring manager for Mr. Sousae, reported to her. Ms. Billey stated that she and Mr. Seto signed a form to request a change of the official language requirement for the position from Bilingual Imperative to English Essential. Ms. Billey testified that at the time of the request, which she signed on April 15, 2010, all of the positions reporting to this CS-03 position were English Essential and the incumbent would have no public consultation responsibilities. The change was approved on the basis of this rationale.

37 Mr. Seto stated that he initiated action to staff this CS-03 position on March 2, 2010. He explained that prior to seeking referrals from the CS-03 pool, he asked about changing the official language requirement for the position and he was told to wait until an appointment was being made. Mr. Seto testified that the incumbent of the CS-03 position would have contact with business clients but none of them required bilingual service and the incumbent would not provide service to the public, other agencies, or other parts of the department.

38 Mr. Seto requested and received 10 referrals from the CS-03 pool and chose Mr. Sousae from among them. Prior to the referral and assessment process, he had never worked with Mr. Sousae and he selected him on the basis that he ranked the highest among the referred candidates. A Notice of Appointment or Proposal of Appointment was posted for Mr. Sousae on May 19, 2010.

39 The Sousae document bears on this issue of the language profile of the position to which Mr. Sousae was appointed. It is a record of email communication between the complainant and others between May 19, 2010, and September 13, 2010. The initial email was sent from Ms. Billey to the complainant offering to meet and address questions about the criteria used to select Mr. Sousae from the CS-03 pool. Ms. Billey’s email confirmed that the language of the position was English. The next substantial communication occurred on August 12, 2010. Ms. Doyon responded to the complainant to indicate that “after reviewing the tasks and since there was no supervision (of bilingual employees) responsibilities associated with the position, it was determined that the bilingual requirement could be changed to English essential”. The complainant replied that to his knowledge there were individuals receiving a bilingualism bonus who reported to the position. On September 13, 2010, Ms. Doyon wrote to the complainant to confirm that he was correct in his understanding and that this would be considered more closely in the future.

40 The Tribunal finds that the complainant has not established personal favouritism in the decision to appoint Mr. Sousae. In Glasgow v, Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007, the Tribunal explained that personal favouritism may include the selection of a person based on a personal relationship, as a personal favour, or to gain personal favour with someone else. The complainant has not presented any evidence to support his allegation that personal favouritism played a part in Mr. Sousae’s appointment or the change to the official language requirement. Moreover, the uncontested evidence of Mr. Seto is that he had never worked with Mr. Sousae prior to appointing him; Mr. Sousae was chosen because he had the highest marks among the 10 referred candidates. Accordingly, the allegation that personal favouritism played a part in the appointment of Mr. Sousae is unfounded.

Decision

41 For these reasons, the complaints are dismissed.

Joanne B. Archibald
Member

Parties of Record

Tribunal File:

2010-0033, 0035, 0092, 0096, 0187-0189, 0253, 0310, 0453; 2009-0508, 0522, 0526, 0558, 0740

Style of Cause:

Taticek and the President of the Canada Border Services Agency

Hearing:

November 21, 2011
Ottawa, Ontario
(Written submissions concluded March 22, 2012)

Date of Reasons:

June 15, 2012

APPEARANCES:

For the complainant:

Peter Taticek

For the respondent:

Christine Langill
Neida Gonzalez
Alexandra Czyzowska

For the Public
Service Commission:

John Unrau
(written submissions)