FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Cesar Rivas Cruz, participated in an internal advertised appointment process to staff Correctional Manager (CX‑04) positions at the Sainte‑Anne‑des‑Plaines Institution, Correctional Service Canada (CSC), in Québec. The complainant submits that the respondent, the Commissioner of CSC, did not conduct a fair and equitable assessment of his interview answers, and that the appointees received higher scores for answers that were identical or similar to his, constituting an abuse of authority.

2 The respondent denies any abuse of authority. It submits that all the candidates were assessed properly and consistently, and that the complainant was eliminated because he did not provide satisfactory answers to the questions assessing the essential qualification of “Management Excellence”.

3 The Public Service Commission (PSC) was not represented at the hearing, but it provided written submissions describing its relevant policies, in particular its policies on assessment, and on selection and appointment. The PSC did not take a position on the merits of the complaint.

4 For the reasons set out below, the Public Service Staffing Tribunal (the Tribunal) finds that the complainant has not established that the respondent abused its authority in this appointment process.

Background

5 The complainant joined CSC in 2002. He works as a Correctional Officer II (CX‑02) at the Reception Centre at Sainte‑Anne‑des‑Plaines Institution, where he has worked in the Special Handling Unit for nine years. He has held previous acting Correctional Manager (CM) positions, and he participated in the institutional crisis situation training for managers a few months before he applied to the position at issue. The complainant believes that he has the necessary experience, knowledge and training, and states that he was extremely surprised to find out that he had been unsuccessful.

6 On May 18, 2011, the respondent posted a Job Opportunity Advertisement on the federal government website Publiservice to staff CM positions at the Regional Reception Centre (which includes the Special Handling Unit) at Sainte‑Anne‑des‑Plaines Institution.

7 The assessment board (the board) was made up of André Courtemanche, who was the chairperson, and Joyce Malone. They prepared the statement of merit criteria and the assessment tools, screened the candidates, conducted the interviews, and carried out the reference checks.

8 The statement of merit criteria included the following essential qualification: “Management Excellence (action management, financial management, people management)”.

9 The candidates who were screened in wrote a knowledge exam, which the complainant passed. The exam was followed by an interview, which was used to assess the essential qualification of “Management Excellence”. The three interview questions were scenarios. Questions 1 and 3 assessed the element of “action management” and Question 2 assessed the element of “people management and financial management”. Each question was worth 7 points, for a total of 21 points. The pass mark for this qualification was 12 points.

10 The board assessed the candidates’ answers by consensus, using a descriptive rating scale from 1 to 7 points. The board concluded that the complainant had not provided satisfactory answers to the three interview questions, and did not give him the pass mark required for the “Management Excellence” qualification.

11 Staffing Officer Constance Gountoussoudis advised the board. She conducted an overall verification of the candidate assessments and of the results of the process. Ms. Gountoussoudis testified that she had noted no anomalies or irregularities.

12 On December 9, 2011, the respondent posted a Notification of Appointment or Proposal of Appointment for the indeterminate appointments of Lorraine Claire Dallaire, Georges Jean‑Pierre, Eddy Laguerre, Philip Le May and Michel Ritchot.

13 On December 26, 2011, the complainant filed a complaint under s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (PSEA), in relation to those appointments.

Preliminary Matter

14 At the hearing, the complainant wanted to file into evidence the report of a deputy head’s investigation about alleged irregularities in this appointment process. The respondent objected, arguing that the investigation had found no irregularities in the process. The Tribunal, which is not bound by the findings of that report, refused to admit the report but allowed the parties to question witnesses on the treatment and assessment of the individuals eventually appointed in the process, issues that were dealt with during the investigation.

Analysis

15 The Tribunal must determine whether the respondent abused its authority by acting in bad faith in its assessment of the complainant against the essential qualification of “Management Excellence”.

16 Abuse of authority is not defined in the PSEA, but s. 2(4) specifies that it includes bad faith and personal favouritism.

17 Pursuant to s. 77 of the PSEA, the Tribunal’s role is to determine whether there has been an abuse of authority. Its role is not to re-assess the candidates or conduct a new appointment process. The Tribunal may, however, review an assessment to determine whether there has been an abuse of authority. See Elazzouzi v. Deputy Minister of Human Resources and Skills Development Canada, 2011 PSST 0011, as upheld in Canada (Attorney General) v. Lahlali, 2012 FC 601, at paras. 42-46.

18 As the Tribunal has established in many decisions, the complainant bears the burden of proving, on a balance of probabilities, that the appointment process was tainted by an abuse of authority. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 49 and 55.

19 The complainant submits that the answers he gave at his interview were acceptable and consistent with CSC’s policies and practices. He submits that the respondent acted in bad faith and misused its discretion, and that a reasonable person would conclude that there was no rational basis for the excessively harsh correction of his answers.

20 In his testimony, the complainant reviewed in detail his answers to Question 1 and Question 3. He explained the decisions he made in relation to the scenarios presented in those questions. The complainant did not discuss his answer to Question 2.

21 The scenario presented in Question 1 related to managing the emergency transfer of eight inmates from a medium security institution to a maximum security institution in the wake of a major incident that had occurred over the course of a weekend. The candidates had to manage the intake of these inmates and take the necessary steps to safely integrate them into the institution. The candidates had to describe their concerns and the actions they would take to deal effectively with the situation.

22 The complainant explained that the elements presented in Question 1 led him to place the transferred inmates in administrative segregation upon their arrival so as not to hinder the investigation that needed to be conducted into the incident that occurred at the parent institution, according to the CSC’s Commissioner’s Directives (CDs). He described how his approach to the situation had influenced his answer to the question, explaining that that was why he had not mentioned some of the elements of the expected answer. In his opinion, he had nevertheless done what was required in the circumstances and had covered the expected answer overall. He believes that his answer deserved more than the 3 points he was given.

23 The scenario presented in Question 3 related to an institutional emergency in which inmates were gathered in the activity yard while an inmate laid motionless in another area of the yard. The candidates had to indicate what actions they would take and what instructions they would give to the correctional officers in those circumstances. In the second part of the question, presented during the interview, the candidates learned that the inmates were not cooperating, were ignoring the correctional officers and verbally abusing them, and that the motionless inmate was still isolated in the yard. Again, the candidates had to indicate what actions they would take.

24 The complainant described all the elements of his answer to Question 3. He explained that, in the second part of the question, he had concluded that to get to the motionless inmate, he would have to use gas to disperse the inmates who were being physically uncooperative and refusing to obey orders. He pointed out that the Institutional Crisis Management Manual [translation] (the Manual), which contains a table describing CSC’s Situation Management Model, states that, when dealing with “physically uncooperative” behaviour, the level of intervention must be increased when verbal intervention does not resolve the situation. The model indicates that inflammatory or chemical agents and physical handling may then be used. In his view, the Manual, his work experience, and his knowledge of the CDs and of CSC legislation all confirmed that the use of gas was appropriate under the circumstances. In his opinion, he had covered all of the expected answer and his response deserved more than 3 points.

25 Mr. Courtemanche, the chairperson of the assessment board, explained his professional background at CSC. He has been retired since October 2008, but continues to work on various CSC projects. He has extensive experience in the area of prison security. In particular, he was the deputy warden of Archambault Institution and, for 10 years, was an emergency management trainer. He explained that Ms. Malone, the other member of the board, is also retired from CSC, where she had been the director of operations for the Québec regional security office.

26 Mr. Courtemanche explained in detail why the board had found the complainant’s answers to the interview questions to be unsatisfactory.

27 In Question 1, the candidates had to consider and assess the potential risks and threats posed by integrating into the new institution eight inmates who had caused problems at another institution. The complainant did not do so and instead placed them in administrative segregation upon their arrival. Mr. Courtemanche noted that CSC policy requires that the least restrictive measures possible be taken, and stated that the proper procedure in this scenario was to place the inmates in the general population, in different ranges if necessary to separate them from the other inmates. Once an inmate is placed in segregation, he is “labelled” and it is difficult to subsequently reintegrate him. Inmates may need to be placed in segregation if it is determined, after an assessment, that the associated risks are high. In response to the complainant’s statement that he had placed the inmates in segregation so as not to hinder the investigation that would follow, Mr. Courtemanche pointed out that the incidents had occurred at another institution, which is where the investigation would be conducted. The inmates had to be placed in the general population.

28 Given that, according to the correction scale, the complainant’s answer to Question 1 was inconsistent with the main expectation, that he misidentified the problem, and that his actions made it impossible to achieve the targeted objectives, the board awarded him only 3 points.

29 In Question 3, the candidates had to explain what intervention strategy they would use to secure the crowd of inmates and assist the motionless inmate, without compromising the safety of the employees carrying out the intervention or ignoring the crowd of inmates. The chosen solution had to be consistent with CSC’s Situation Management Model and show use of minimal force, while prioritizing the situation of the inmate experiencing a medical emergency. Mr. Courtemanche explained that the Situation Management Model is an intervention model that sets out a progression of emergency situations—from uncooperative inmates up to the risk of fatal injury—and the corresponding intervention methods appropriate to the circumstances. All officers must comply with the model.

30 According to Mr. Courtemanche, the board could consider answers other than the expected answers, and the complainant mentioned a number of the expected elements in his response. However, he made a serious error because, after ordering the inmates to disperse, he chose to use gas as a means of getting to the motionless inmate. Mr. Courtemanche pointed out that nothing in the scenario indicated that the situation had escalated to that level of intervention. There was verbal resistance and verbal abuse but no threats, and the correctional officers had a range of other options at their disposal. The use of gas constituted excessive force. Mr. Courtemanche referred to all the additional problems that the use of gas would create.

31 The board awarded the complainant only 3 points because, according to the correction scale, he misidentified the problem and his actions made it impossible to achieve the targeted objectives.

32 The complainant submits that he was treated differently than the appointees and that his answers were found to be unsatisfactory even though they were similar to or better than those given by the appointees. In support of his argument, he referred to the answers of three of the appointees. According to the complainant, in Question 1, one of the appointees placed the inmates in administrative segregation without having first assessed the threats and risks, and that appointee scored 5 points. Another appointee twice mentioned the possibility of placing the inmates in segregation and received a perfect score for that answer. In Question 3, another appointee mentioned making sure that all the officers had inflammatory agents and also mentioned an attack dog. That appointee received 6 points for that answer. According to the complainant, his own answers were clearly comparable (segregation, gas), which shows that the board had been excessively harsh toward him.

33 Mr. Courtemanche did not agree that those individuals had given responses similar to the complainant’s. He noted that the first person had assessed the situation and had mentioned integrating the inmates into the general population, separately if there was an incompatibility with the other inmates, or placing them in segregation pending an assessment. That was what the board was looking for. The second person also analysed the threats and risks, and mentioned meeting with the inmates individually to identify the antagonists and to obtain information about the incidents. That person did not place them in segregation, but rather, mentioned integrating them into the general population and being ready to place them in segregation if necessary. That person did not place all the inmates in the same range in the unit. According to Mr. Courtemanche, that person gave a complete answer. Mr. Courtemanche stated that, not knowing what could happen during the incident, the third appointee had demonstrated caution; this appointee did not use inflammatory agents.

34 In this case the complainant disputes the assessment board’s conclusions regarding his answers. He is of the opinion that his answers were acceptable and that, essentially, he should have received at least the pass mark.

35 As noted earlier, the Tribunal’s role is not to conduct a new process, re-assess the marks the board awarded to a complainant for his or her answers, or review the correction. Rather, the Tribunal must examine the process used by the deputy head in order to determine whether there was abuse of authority.

36 Mr. Courtemanche has explained why the board concluded that the complainant’s answers to questions 1 and 3 were unsatisfactory. The complainant placed the transferred inmates in segregation without having first determined the existence of potential threats or risks, and without having examined all possible options. Mr. Courtemanche also explained why the board had concluded that the three appointees referred to by the complainant had provided more acceptable and more complete answers than the complainant. For example, unlike the complainant, the people who mentioned segregation did so in the context of their assessment of the situation and the inmates.

37 The complainant has not established that the board’s assessment was unreasonable and inconsistent with the expected answers.

38 The Tribunal finds that the complainant has failed to demonstrate that the respondent acted in bad faith or abused its authority in assessing the essential qualification of “Management Excellence”.

Decision

39 For all these reasons, the complaint is dismissed.

Lyette Babin-MacKay
Member

Parties of Record

Tribunal Files:

2011-1221

Style of Cause:

Cesar Rivas Cruz and the Commissioner of Correctional Service Canada

Hearing:

February 12 and 13, 2013
Montreal, QC

Date of Reasons:

May 24, 2013

APPEARANCES:

For the complainant:

Serge Dubord

For the respondent:

Pierre Marc Champagne

For the Public
Service Commission:

Marc Séguin
(written submissions)