FPSLREB Decisions

Reasons for Decision

Introduction

1 Gandhi Jean Pierre, the complainant, participated in an advertised internal appointment process for the position of Hearings Officer at the FB‑05 group and level within the Canada Border Services Agency (CBSA). The complainant was eliminated from the process because he failed to meet three of the essential qualifications established for the position.

2 The complainant alleges that the President of the CBSA, the respondent, abused its authority in the application of merit in this appointment process. The complainant alleges in particular that the assessment board’s choice of referees was inappropriate and that the assessment board based its decision on two references that were unreliable because the referees were biased against him. The complainant further alleges that the assessment board members were biased and that they should not have refused to reconsider their decision to eliminate the complainant from the appointment process. In addition, the complainant argues that the referees and assessment board members discriminated against him because of his race, colour and ethnic origin.

3 The respondent denies the allegations.

4 The Public Service Commission (PSC) was not represented at the hearing, but it provided the Public Service Staffing Tribunal (the Tribunal) with written submissions describing its appointment policies and guides relevant to these complaints. The PSC did not take a position on the merits of the complaint.

5 For the reasons set out below, the Tribunal finds that the complainant failed to establish that the respondent abused its authority in this appointment process.

Background

6 On December 9, 2010, the respondent posted a Job Opportunity Advertisement on Publiservice, the federal government website, to establish a pool of qualified candidates to fill Hearings Officer positions at the FB‑05 group and level, on an acting or indeterminate basis, within the Enforcement Division of CBSA in Montreal.

7 The assessment board was chaired by Khalid Meniaï, who was then the Supervisor, Enforcement (Hearings‑Interventions). Also on the assessment board were Réjean Théberge, Hearings Officer, Immigration section; and Catherine Raymond, Hearings Officer, Montreal Hearings Office. Anne‑Marie Signori, Chief of Operations, Hearings (Appeals and Interventions), was the manager to whom the respondent had sub‑delegated staffing authority. Miruna Vasilescu was the human resources advisor in this appointment process; she was not part of the assessment board. All of these people worked at CBSA.

8 The complainant was eliminated from the process because he failed to meet the essential qualifications of “judgement,” “integrity” and “reliability.” The pass mark for each qualification was 60%. Judgement and integrity were assessed by means of the interview and the reference check. An overall mark combining the interview and the references was assigned to each of these two qualifications. The complainant’s performance at the interview was good, but he failed to meet these qualifications when the assessment board took the references into account. He obtained an overall mark of 50% for each of these two essential qualifications. The qualification of reliability was assessed by means of the reference check only. The complainant received a mark of 44% and therefore failed to obtain the pass mark for this essential qualification.

9 On July 3, 2012, the respondent posted an Information Regarding Acting Appointment notice to announce an acting appointment to the above-stated position.

10 On July 19, 2012, the complainant filed with the Tribunal a complaint of abuse of authority pursuant to s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (the PSEA).

11 The complainant informed the Canadian Human Rights Commission (CHRC) that he intended to raise an issue related to the interpretation or application of the Canadian Human Rights Act, R.S.C. 1985, c. H‑6 (the CHRA). The CHRC informed the Tribunal that it did not plan to attend the hearing or make submissions.

Preliminary matter

12 The complainant and the respondent requested that a medical report and documents pertaining to the permanent residence applications of foreign nationals be sealed due to their confidential nature. The Tribunal allowed the request.

Issues

13 In order to determine whether the respondent abused its authority in the application of merit in this appointment process, and more specifically in the assessment of the complainant’s qualifications, the Tribunal must decide the following issues:

1. Was the assessment board’s choice of referees appropriate?
2. Were the references given reliable?
3. Were the assessment board members impartial?
4. Was the assessment board required to re-assess the complainant?
5. Did the referees and assessment board members discriminate against the complainant?

Analysis

14 Section 77(1) of the PSEA states that a person in the area of recourse may make a complaint that he or she was not appointed or proposed for appointment by reason of an abuse of authority by the PSC or the deputy head in the appointment process. Abuse of authority is not defined in the PSEA, but s. 2(4) states that “[f] or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

15 As has been established in the Tribunal’s case law, this wording indicates that abuse of authority must be interpreted broadly and is not limited to bad faith and personal favouritism. In Kane v. Canada (Attorney General), 2011 FCA 19, at para. 64, the Federal Court of Appeal upheld the Tribunal’s interpretation by ruling that an error can also constitute an abuse of authority. (The Court of Appeal’s decision was set aside on a different ground by the Supreme Court of Canada in Canada (Attorney General) v. Kane, 2012 SCC 64.) Whether an error constitutes an abuse of authority will depend on its nature and seriousness.

16 Abuse of authority can also include an omission or improper conduct. The scope of the omission or the degree to which the conduct is improper will determine whether or not they constitute an abuse of authority. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008.

17 The complainant bears the burden of proving, on a balance of probabilities, that the respondent abused its authority in the appointment process (Tibbs, at paras. 49 and 55).

Issue I:  Was the assessment board’s choice of referees appropriate?

18 The complainant submits that the respondent should have allowed him to choose his referees, that the respondent could not choose them without his consent, and that the respondent should not have chosen a referee that was not the complainant’s immediate supervisor.

19 The complainant explained that, during the appointment process, his substantive position was as a Citizenship and Immigration Officer at the PM‑03 group and level, at Citizenship and Immigration Canada (CIC). When the appointment process started, he had been appointed to the position of Pre‑Removal Risk Assessment Officer at the PM‑04 group and level, in the Pre‑Removal Risk Assessment (PRRA) Division of CIC. This acting appointment had started on November 15, 2010, and ended on October 28, 2011. During that period, Cathie Giroux, Coordinator, PRRA, CIC, was his supervisor. He returned to his substantive position on October 29, 2011, before the end of this appointment process.

20 Ms. Raymond explained how the assessment board chose the referees. Before the interview, the respondent had sent a form to candidates on which they had to provide the names of two referees. The first one had to be the candidate’s current immediate supervisor, and the second one had to be another person with whom the candidate had had a professional relationship within the previous four years. The complainant gave the names of Ms. Giroux, his current immediate supervisor, and Sophie Kobrynsky, his previous supervisor.

21 Ms. Raymond and Mr. Meniaï stated that the complainant submitted the form with the names of his referees during the interview and did not make any comments about it.

22 Ms. Raymond and Mr. Meniaï described how the assessment board conducted the reference checks. The assessment board first provided the referee with the reference interview form that included the definitions of the personal suitability criteria assessed and the interview questions. One of the assessment board members then interviewed the referee, and the three assessment board members reviewed the referee’s answers and assigned a mark by consensus.

23 Ms. Raymond stated that she met with Ms. Giroux on November 30, 2011. Ms. Raymond asked Ms. Giroux the reference questions, and she summarized Ms. Giroux’s answers on the reference interview questionnaire. Ms. Giroux’s comments about the complainant were generally unfavourable.

24 Ms. Raymond stated that, generally, the assessment board contacted only one referee, namely, the candidate’s current immediate supervisor. The assessment board rarely contacted the second person named as a referee. But, since the complainant had passed the interview and Ms. Giroux’s reference was generally negative, the assessment board decided to contact the second person whose name had been provided by the candidate, Ms. Kobrynsky.

25 Ms. Raymond interviewed Ms. Kobrynsky by telephone on December 13, 2011. She summarized Ms. Kobrynsky’s comments on the reference interview questionnaire. Ms. Kobrynsky’s comments were positive.

26 In his testimony, Mr. Meniaï stated that the assessment board was then faced with two contradictory references, one from Ms. Giroux that was unfavourable, and the other from Ms. Kobrynsky that was favourable. Mr. Meniaï discussed the matter with Ms. Signori, the manager of the position that was to be filled. After that discussion, the assessment board decided to contact a third referee, Dianne Clément, regional director, who was Ms. Giroux’s supervisor and the manager of the PRRA division at CIC where the complainant was working at the start of the assessment process. Ms. Signori offered to conduct the reference interview, and Mr. Meniaï gave her the reference questionnaire.

27 Ms. Signori met with Ms. Clément on December 19, 2011. She asked Ms. Clément the questions in the reference questionnaire, and wrote the answers on the questionnaire. She then summarized Ms. Clément’s answers and sent them to Mr. Meniaï in an email dated January 4, 2012. Ms. Clément’s comments about the complainant were generally unfavourable.

28 The complainant submits that the respondent should have let him choose the referees and that the respondent could not choose a referee without his consent. The complainant referred to the PSC document entitled Structured Reference Checking: A User’s Guide to Best Practices, which states that candidates can choose the referees and should play an active role in their selection and preparation.

29 The Tribunal finds that this allegation is unfounded. The complainant participated in part in the choice of referees by suggesting that Ms. Kobrynsky act as a referee; however, it is true that he did not participate in the choices of Ms. Giroux and Ms. Clément. With regard to Ms. Giroux, he had to include her name on the reference form because the form asked candidates to provide the names of two references, including their immediate supervisor. The assessment board did not consult the complainant about Ms. Clément. However, there is no requirement for the assessment board to obtain a candidate’s consent to choose a referee. The above‑mentioned PSC document suggests that the candidate participate in the choice of referees, but does not state that the assessment board must accept the candidate’s suggestions. The Tribunal would also like to point out that the document to which the complainant is referring is a guide, not a policy within the meaning of ss. 16 and 29(3) of the PSEA that, pursuant to those provisions, the deputy head to whom the PSC has delegated staffing authority is required to follow. The guides, as explained by the PSC in its written comments, provide practical guidance that do not bind the deputy head.

30 In Oddie v. Deputy Minister of National Defence, 2007 PSST 0030, at paras. 68 and 69, the Tribunal found that a candidate’s consent is not required to communicate with referees who work in the public service. See also Dionne v. Deputy Minister of National Defence, 2008 PSST 0011; and Gabon v. the Deputy Minister of Environment Canada, 2012 PSST 0029, at para. 48.

31 The complainant brought to the Tribunal’s attention another PSC document concerning references entitled Checking References. He submits that this document indicates that the assessment board is required to obtain the candidate’s consent in the choice of referees. The complainant bases this argument on the following excerpts:

A Window into the Past

... This guide provides practical information which will help you get the most out of the reference check.

Reference checks are used for two purposes. The first is the evaluation of the reliability/security qualification. The second is the evaluation of other abilities, skills, personal suitability, or other qualifications. Sometimes the same reference check will be used for both purposes. The evaluation of the reliability/security qualification is done according to Treasury Board policy. This guide will focus on using the reference check to assess abilities, skills, personal suitability and other qualifications.

The issue of consent

Before we discuss the reference check itself, let's deal with the issue of candidate consent.

If the reference check is to be used to assess the reliability/security qualification, then Treasury Board policy requires candidate consent to check references in all circumstances. When the reference check is used to assess a qualification other than reliability/security, consent is not required when the referee is from within a federal institution. Consent is required to contact referees from outside the Public Service.

Given that the reference check will often seek information relevant to both the reliability/security and other qualifications, candidate consent will normally be required. Even in cases where consent may not be required, it is suggested that consent be obtained as a matter of courtesy to the candidate.

[Emphasis added]

32 This document, like the previous document to which the complainant referred, is a guide containing practical guidance that does not bind the deputy head. It states that the candidate’s consent is required when the organization is assessing the candidate’s “reliability/security” for the purposes of establishing the candidate’s security clearance. This assessment is carried out, as indicated in the above passage, in accordance with the authorities delegated by the Treasury Board. There is no indication that such an assessment was performed in this case. In fact, such an assessment was not necessary because, as indicated in the Job Opportunity Advertisement, the security clearance for this position was not “reliability” but “[s]ecret.”

33 The “reliability” that was assessed by the assessment board has nothing to do with the security clearance. Rather, it is one of the essential qualifications established by the respondent pursuant to s. 30(2) of the PSEA, which gives the respondent the authority to establish the qualifications for a position. The assessment of this qualification is an authority delegated to the respondent by the PSC, not by the Treasury Board, as is the case for security clearances. The reference questionnaire defines this qualification as follows: “trustworthiness” [translation]. As indicated in the passage above, using a referee from within the public service to assess the qualification of “reliability” as stated on the statement of merit criteria does not require the candidate’s consent.

34 The complainant also submits that, by contacting Ms. Clément without his consent, the assessment board violated ss. 7 and 8 of the Privacy Act, R.S.C. 1985, c. P­‑21, which stipulate that any personal information collected about an individual cannot be disclosed without the individual’s consent. The Tribunal finds, however, that the respondent did not require the complainant’s consent before contacting Ms. Clément. Section 8(2) of the Privacy Act explicitly states that personal information under the control of a government institution may be disclosed for the purpose for which the information was obtained or for a use consistent with that purpose. The use of information about a candidate’s work performance that was obtained as part of an appointment process constitutes a use consistent with the purpose for which the information was obtained. As indicated above, the Tribunal previously decided in Dionne and Gabon that an assessment board can consult a referee without the candidate’s permission.

35 The complainant maintains that, by imposing the choice of Ms. Giroux and Ms. Clément on him, the respondent violated section 4 of the Quebec Charter of Human Rights and Freedoms, 1975, c. 6,which stipulates that every person has a right to the safeguard of his reputation, and ss. 3, 35, 37 and 40 of the Civil Code of Québec, 1991, c. 64, which address the right to privacy. The Tribunal notes that these two pieces of provincial legislation do not apply to appointment processes conducted under the PSEA.

36 The complainant submits that the board should have informed him of the choice of Ms. Clément so that he could make his concerns about her impartiality known to the board. The Tribunal is of the view that it would have been preferable for the assessment board to inform the complainant of this step. It would have ensured greater transparency in the appointment process and given the complainant the opportunity to inform the assessment board of his apprehensions about this choice from the start of the process. Although this is certainly a best practice, the Tribunal cannot find that there is a requirement to do so.

37 The complainant did have the opportunity to inform the assessment board of his concerns about Ms. Clément’s impartiality during the informal discussion, a step provided for in section 47 of the PSEA. The purpose of the informal discussion is to explain to the candidate why the assessment board eliminated him or her from the appointment process. This step takes place before a candidate is appointed; therefore, as provided for in section 48(2), the assessment board members can change their mind about a candidate. The complainant took the opportunity during the informal discussion to explain his concerns about Ms. Clément to the assessment board members. He reiterated these concerns in a document dated March 6, 2012, entitled Corrective Action Following My Elimination From Selection Process 10-BSF-IA-QUE-850-FB-007, which he gave to the assessment board members. The assessment board decided not to accept the complainant’s accusations that Ms. Clément was biased against him.

38 The Tribunal therefore finds that the assessment board was not obligated to inform the complainant in advance that it was going to contact Ms. Clément and finds that the complainant had the opportunity to make his concerns about this person known before the end of the appointment process.

39 The complainant also submits that Ms. Clément should not have been a referee because she was not his immediate supervisor.

40 Ms. Clément explained in her testimony that she was the manager of employees in the PRRA division where the complainant worked. She based her comments about the complainant’s work performance on records of decision that he had prepared and that she had read in part, on the complainant’s performance evaluation reports in the position of PRRA officer, on the coaches’ reports and on her discussions with the complainant and with Ms. Giroux.

41 The Tribunal is of the view that Ms. Clément could be a referee. First, the complainant failed to establish that the referee in an assessment process must necessarily be the candidate’s immediate supervisor. A person can be a referee if he or she has sufficient knowledge of a candidate’s work performance. In this case, the evidence that the complainant himself presented demonstrates that Ms. Clément had clear knowledge of his work performance. In an email exchange dated August 25 and 30, 2011, and October 28, 2011, Ms. Clément and the complainant discussed the complainant’s work performance at length. In the email of August 25, 2011, for example, Ms. Clément set specific performance objectives for the complainant. She was also the one who had to decide whether the complainant’s acting appointment to the position of PRRA officer would be renewed. The Tribunal therefore concludes that Ms. Clément had sufficient knowledge of the complainant’s work performance to be a referee.

42 The Tribunal concludes that the choice of referees was appropriate.

Issue II:  Were the references given reliable?

43 The complainant submits that the references given by Ms. Giroux and Ms. Clément were not reliable, for various reasons, including the fact that these two people were biased against him and because their comments did not correspond to his performance evaluations in positions other than the PRRA officer and the comments from other observers of his work throughout his career.

44 As the Tribunal found in Pellicore v. President of the Canada Border Services Agency, 2010 PSST 0023, at paras. 49-50, a referee’s bias does not necessarily mean that the assessment board abused its authority. Section 77(1)(a) stipulates that the abuse of authority must have been committed by the respondent to whom the PSC delegated its appointment authority. An assessment board should take into account any element that would call into question the reliability of the information provided by a referee. But the fact that a candidate merely disagrees with the comments of a referee does not prove that the reference is not reliable (Pellicore, at para. 50). In order to establish that the respondent abused its authority, the complainant must demonstrate that it was evident to the assessment board that the information provided by the referees was unreliable, whether because of an evident bias on their part, or for any other reason. In this case, the complainant failed to demonstrate that the references given by the referees were unreliable and that the assessment board should have concluded that they were unreliable.

45 The complainant submits that Ms. Giroux was biased against him because he disputed two of his performance evaluation reports. The Tribunal notes that the complainant did not inform the assessment board during his interview, which took place before the reference check, that he objected to having Ms. Giroux as a referee. He made his concerns known to the assessment board only after Ms. Giroux gave an unfavourable reference. That being said, it goes without saying that employees do not always agree with the evaluation of their performance conducted by their supervisor. Sometimes an employee disputes that evaluation. This is part of the normal labour relations model, and dealing with such a dispute is part of a supervisor’s regular duties. The complainant failed to establish that his dispute had affected Ms. Giroux’s impartiality toward him.

46 The complainant submits that Ms. Raymond wrote in an email that she sent to Mr. Meniaï and others on December 16, 2011, that Ms. Giroux had “personal problems” [translation] with the complainant. Ms. Raymond stated in her testimony that she had misspoken. The problems were actually related to the complainant’s work performance.

47 Ms. Giroux stated in her testimony that she did not have personal problems with the complainant.

48 During her testimony, Ms. Signori stated that she had asked Ms. Clément during the reference interview whether Ms. Giroux had a conflict with the complainant. Ms. Clément replied that Ms. Giroux had problems with the complainant’s work performance.

49 The complainant did not refer to any incident or oral exchange involving Ms. Raymond that would indicate the existence of a personal conflict. The Tribunal therefore finds that the evidence indicates that the problems to which Ms. Raymond alluded in her email were actually related to work performance issues, not personal problems.

50 The complainant submits that Ms. Clément was biased against him because she had been the chair of the assessment board in another appointment process and that he had filed a complaint with the Tribunal regarding that process. He later withdrew the complaint. According to the complainant, Ms. Clément provided negative comments about him as payback for his complaint in the other appointment process.

51 Ms. Clément stated in her testimony that she had never had a conflict with the complainant.

52 Apart from his testimony, the complainant did not present any evidence demonstrating that Ms. Clément was part of the other assessment board. Having stated that, even if Ms. Clément had been part of the assessment board for the other appointment process, the Tribunal finds that this fact would not establish an appearance of bias. The complainant failed to establish that the complaint had affected Ms. Clément’s impartiality toward him.

53 The complainant raised doubts about Ms. Clément’s impartiality because, at the end of 2010, he had also filed a complaint of unfair labour practice against the employer pursuant to section 190 of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2, because Ms. Clément’s assistant was in possession of the key to a filing cabinet belonging to the union, which contained confidential information about union members.

54 The Tribunal cannot draw any conclusion on this matter because it lacks information. The complainant failed to provide further explanations about this incident and he failed to submit any documents about this complaint, other than the letter acknowledging receipt of the complaint dated February 22, 2012, from the Public Service Labour Relations Board (PSLRB). It appears that the PSLRB has not yet dealt with the complaint.

55 The Tribunal also notes that the complaint to the PSLRB could not have influenced Ms. Clément’s reference because it was filed long after Ms. Clément gave her reference about the complainant. Ms. Clément gave her comments to Ms. Signori on December 19, 2011, as indicated in the email sent on that date by Ms. Signori to Ms. Raymond and others. In fact, the complaint was filed with the PSLRB after Mr. Meniaï told the complainant that the assessment board had eliminated him from the appointment process. Mr. Meniaï informed the complainant of that decision on January 28, 2012. The acknowledgement of receipt from the PSLRB indicates that the complaint was filed on February 22, 2012. Therefore, that complaint could not have influenced the comments made by Ms. Clément since it was filed after the reference interview.

56 The complainant submits that the comments of Ms. Giroux and Ms. Clément are not reliable because they are not consistent with the performance evaluations completed by his other supervisors throughout his career at CIC. He has worked at CIC for 14 years, and he worked for nine years as a Citizenship and Immigration Officer.

57 The Tribunal notes that, during the reference check, the assessment board did not take into account the performance evaluations that the complainant received when he worked as a Citizenship and Immigration Officer. It was only during the informal discussion that the complainant gave these documents to the assessment board. But the fact that the complainant had positive performance evaluations as a Citizenship and Immigration Officer does not establish that the comments of Ms. Giroux and Ms. Clément about his performance as a PRRA officer are not adequate reflections of his performance in that position. A person can perform very well in one position, and not do as well in another position. That was the conclusion made by the assessment board. In her email of December 16, 2011, Ms. Raymond wrote to Mr. Meniaï, Ms. Vasilescu and Ms. Signori that the complainant had received positive performance evaluations as a Citizenship and Immigration Officer, but poor evaluations as a PRRA officer. She wrote in her email that she believed that the position of PRRA officer did not suit the complainant. Ms. Clément echoed that sentiment in her testimony. She stated that she had told Ms. Signori that the complainant was not in a position that suited him in the PRRA division but that he had done good work in other positions. She was his manager in another position in 2001 and 2002, and he had not had any performance problems during that time.

58 The Tribunal also notes that the position of Hearings Officer differs from the position of Citizenship and Immigration Officer. The first is a position at the PM‑04 group and level, whereas the second is a position at the PM‑03 group and level. The complainant himself stated in an email dated August 30, 2011, to Ms. Clément that the PRRA division is “... where the specialized and technical attributes are the most demanding ...” [translation] at CIC. The Tribunal therefore concludes that the fact that the complainant received positive performance evaluations as a Citizenship and Immigration Officer does not indicate that Ms. Giroux’s and Ms. Clément’s comments during the reference interview do not properly reflect his performance as a PRRA Officer.

59 The complainant also alleges that Ms. Giroux’s and Ms. Clément’s comments are inconsistent with the fact that, during his career, he received many certificates of recognition and letters of appreciation. The Tribunal finds that these certificates and letters fail to establish that Ms. Giroux’s and Ms. Clément’s comments were not reliable because they concerned the complainant’s performance in other positions and for other activities, such as his involvement in the Québec Federal Public Servants’ Youth Network. The certificate of recognition from the Clerk of the Privy Council and Secretary to the Cabinet, for example, concern his involvement during the earthquake in Haiti. The complainant failed to establish that his involvement during that earthquake involved tasks similar to those of a PRRA Officer.

60 The complainant submits that Ms. Giroux’s and Ms. Clément’s comments about his relationships with certain authority figures and with management were false. The Tribunal does not have to decide this matter because these comments pertained to the qualification “effective interpersonal skills” and the complainant met that qualification. These comments therefore did not play a role in the complainant’s elimination from the appointment process.

61 The complainant entered into evidence various records of decision that he had written as a PRRA Officer concerning permanent residence applications from foreign nationals, as well as emails from Ms. Giroux in which she criticized certain elements of these records of decision. According to him, these records of decision demonstrated the good quality of his work. Ms. Giroux’s comments in these emails were not justified.

62 Darin Jacques, a member of the Immigration and Refugee Board, stated in an affidavit on January 29, 2013, that he had been a PRRA officer for more than four years and that he had been the complainant’s colleague from November 2010 to October 2011. During that time, the complainant had asked him to review ten or so of his records of decision. Mr. Jacques stated in his affidavit that, in his view, the complainant’s records of decision were excellent.

63 The Tribunal notes that the assessment board did not have these records of decision in hand when it conducted its assessment. The assessment board relied on the examples given orally by the complainant’s referees, often based on these records, to assess the complainant’s qualifications. The Tribunal also emphasizes that its role is to determine whether there was an abuse of authority in this appointment process, not to re‑assess the complainant during the hearing. See, for example, Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020. The Tribunal therefore cannot re‑assess the complainant’s qualifications by reviewing the records of decision that the complainant submitted during the hearing or by relying on Mr. Jacques’ comments about the quality of the complainant’s work.

64 The Tribunal finds that there was no abuse of authority in the check of the references provided by Ms. Giroux and Ms. Clément. Ms. Giroux gave credible explanations for her unfavourable reference. For example, for the qualification of “judgement,” she told Ms. Raymond that the complainant had made contrary decisions concerning two identical cases involving two Nigerian nationals. According to Ms. Giroux, the complainant could not work without supervision because of weaknesses in his records of decision. Ms. Clément’s comments were similar. In her reference regarding the “judgement” qualification, she stated that the respondent had had to set up personalized monitoring for the complainant because he regularly made errors in his records of decision.

65 For the above‑stated reasons, the Tribunal concludes that the complainant did not establish that the references given by Ms. Giroux and Ms. Clément were unreliable and that the assessment board had reason to question the reliability of the referees’ comments.

Issue III:  Were the assessment board members impartial?

66 The complainant alleges that the assessment board members were biased against him.

67 The people responsible for assessment in an appointment process are required to conduct an impartial assessment without reasonable apprehension of bias. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623; [1992] S.C.J. No 21 (QL), the Supreme Court described the test of reasonable apprehension of bias as follows, at para. 22 (QL): “The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.” The objective tests stated by the Supreme Court apply also to assessment board members in an appointment process carried out pursuant to the PSEA. See, for example, Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010, at paras. 64-71.

68 According to the complainant, Ms. Raymond was biased against him because she had a close professional relationship and friendship with Ms. Giroux. Ms. Raymond wrote in an email on December 16, 2011, to Mr. Meniaï and others that she knew Ms. Giroux well and that she respected her judgement.

69 Ms. Giroux stated that she never had a personal relationship with Ms. Raymond. She knew her on a professional level since they had previously met as part of her work. She had not seen her again since 2005.

70 The Tribunal finds that the complainant failed to establish that there was an appearance of bias on the part of Ms. Raymond. He failed to provide any evidence that would demonstrate that there was a friendship between Ms. Raymond and Ms. Giroux. A reasonably informed bystander could not reasonably perceive bias on the part of Ms. Raymond based on the sole fact that she had worked with Ms. Giroux in the past and that, as a colleague, she respected Ms. Giroux’s judgement.

71 The complainant also submits that the assessment board showed bias against him by contacting a third reference to validate the unfavourable remarks of Ms. Giroux and by setting aside the positive reference from Ms. Kobrynsky.

72 This allegation is not founded. The assessment board had a valid reason for obtaining a third reference since the two references it had obtained were contradictory. The assessment board therefore demonstrated diligence, not bias, by contacting a third reference to resolve this dilemma.

73 The evidence also demonstrates that, contrary to the complainant’s allegations, the assessment board did not ignore Ms. Kobrynsky’s reference. Mr. Meniaï and Ms. Vasilescu explained in their testimony that the assessment board members reviewed the information provided by the three referees, including those provided by Ms. Kobrynsky, in order to assign, by consensus, a mark for each qualification.

74 The Tribunal also finds that the assessment board was not biased when, as explained by Mr. Meniaï and Ms. Vasilescu, it gave more importance to the references given by Ms. Giroux and Ms. Clément than to the one given by Ms. Kobrynsky. The comments of Ms. Giroux and Ms. Clément were consistent, and Ms. Giroux’s supervision of the complainant was more recent and had lasted longer than Ms. Kobrynsky’s supervision. Ms. Giroux had supervised the complainant for a year, whereas Ms. Kobrynsky had supervised him for six months. The assessment board members also gave more importance to the references provided by Ms. Giroux and Ms. Clément because they contained more specific examples than the reference given by Ms. Kobrynsky. According to Ms. Raymond’s testimony, Ms. Kobrynsky had trouble giving examples, and the ones she gave were vaguer than the ones given by Ms. Giroux and Ms. Clément. The assessment board members also decided that the comments of Ms. Giroux and Ms. Clément were more relevant because the position of PRRA Officer that the complainant occupied when he worked with Ms. Giroux had more similarities to the position to be filled than the position of Citizenship and Immigration Officer that he occupied when he worked with Ms. Kobrynsky. Ms. Raymond explained that she had been a PRRA Officer and a Hearings Officer, and that the two positions required similar personal suitability and knowledge.

75 The complainant submits that the position of PRRA officer does not have more similarities to the position to be filled than the position of citizenship and immigration officer does.

76 In his testimony, Mr. Jacques stated that he had been a PRRA Officer for more than four years. He also worked as a hearings officer at CBSA on an acting basis for five months. According to him, the duties of a PRRA officer at CIC and those of a Hearings Officer at CBSA are different. PRRA officers generally make decisions on the record, that is, based on a document review. Hearings Officers at CBSA, on the other hand, participate in hearings and deal with counsel.

77 The Tribunal notes that there is a difference of opinion with regard to the similarities among the three above‑stated positions. However, the Tribunal is not required to decide this issue because the similarities among the duties of PRRA Officers and Hearings Officers were not the only criteria used by the assessment board to give more importance to the comments made by Ms. Giroux and Ms. Clément than to those made by Ms. Kobrynsky. As explained above, the assessment board members had other valid reasons for giving more importance to the comments of Ms. Giroux and Ms. Clément, including the fact that Ms. Giroux had supervised the complainant for a longer period than Ms. Kobrynsky had, and that Ms. Giroux had given more concrete examples to expand on her comments.

78 The Tribunal therefore finds that the complainant failed to establish that the behaviour of the assessment board members gives rise to a reasonable apprehension of bias.

Issue IV:  Was the assessment board required to re‑assess the complainant?

79 The complainant submits that, during the informal discussion, the assessment board should have agreed to reconsider its decision to eliminate him and should have agreed to replace the unfavourable references of Ms. Giroux and Ms. Clément with a portfolio of documents that illustrated his successes during his career at CIC.

80 During the informal discussion on February 28, 2012, the complainant told Ms. Raymond, Mr. Meniaï and Mr. Théberge that Ms. Giroux and Ms. Clément were biased against him because of the reasons described above. He repeated these allegations in a document dated March 6, 2012, entitled Corrective Action Following My Elimination From Selection Process 10-BSF-IA-QUE-850-FB-007, which he provided to the assessment board members. During the informal discussion and in this document, the complainant asked the assessment board to reconsider its decision to eliminate him from the appointment process and to look into the references given by Ms. Giroux and Ms. Clément. According to the complainant, the refusal to reconsider the decision to eliminate him in light of these allegations of bias constitutes a serious breach of the rules of natural justice.

81 The Tribunal does not accept this argument. The assessment board members could reasonably conclude during the informal discussion and upon reading the above‑mentioned document that the allegations of bias regarding Ms. Giroux and Ms. Clément were not convincing and that there was no reason to examine those accusations in more depth.

82 During the informal discussion, the complainant asked the assessment board to replace the references provided by Ms. Giroux and Ms. Clément with a portfolio of documents that illustrated the successes of his career. This portfolio contained various certificates of recognition, various letters of appreciation and performance evaluation reports with favourable comments about his work performance. The assessment board refused to replace the references given by Ms. Giroux and Ms. Clément with this portfolio. The complainant reiterated this request in his request for reconsideration on March 6, 2012, and the assessment board refused the request again. According to the complainant, the assessment board should have allowed his request because Ms. Giroux and Ms. Clément were biased. The complainant submits that this refusal is a breach of procedural equity and the principles of natural justice.

83 The respondent submits that the certificates of recognition, letters of appreciation and performance evaluation reports were not part of the assessment methods chosen in this appointment process. The assessment board did not want to use different assessment methods for the complainant because it wanted to ensure consistency in the assessment of candidates. If the assessment board had accepted these documents, it could have been accused of showing favouritism toward the complainant.

84 The Tribunal cannot accept the complainant’s argument. Section 36 of the PSEA gives delegated managers considerable flexibility in the choice of assessment methods. In this case, the respondent chose to assess the disputed qualities by the references, which was its right. There was no obligation for it to replace the references given by Ms. Giroux and Ms. Clément with the complainant’s portfolio. The complainant failed to demonstrate to the assessment board that these two referees were biased. In fact, the Tribunal is of the view that, if the assessment board had accepted the complainant’s portfolio, it would have committed a serious injustice against the other candidates. The assessment board would have used references for the other candidates that could contain unfavourable comments about them, but, for the complainant, would have used a portfolio that generally contained only favourable comments.

85 The complainant alleges that, by refusing to replace the references given by Ms. Giroux and Ms. Clément with his portfolio, the respondent violated his right to “rectify” [translation] his file as stipulated in s. 40 of the Civil Code of Québec. The Tribunal finds that this argument is not founded because, as explained above, this provincial legislation does not apply to appointments made under the PSEA.

86 The complainant submits that the assessment board had an obligation to demonstrate to him that the refusal to reconsider its decision to eliminate him was not the result of a “whim” [translation]. This lack of justification is, according to the complainant, an infringement of the value of transparency stated in the PSC policy and a breach of the principles of natural justice and procedural equity.

87 The Tribunal notes that the assessment board explained to the complainant why it refused to re‑assess his qualifications. Mr. Meniaï stated in his testimony that he had explained to the complainant during the informal discussion that replacing the references given by Ms. Giroux and Ms. Clément with the complainant’s portfolio would have been unfair to the other candidates.

88 The Tribunal therefore finds that the complainant failed to establish that the assessment board had an obligation to re‑assess his qualifications and to replace the references given by Ms. Giroux and Ms. Clément with the complainant’s performance evaluations, as well as the certificates of recognition and letters of appreciation regarding his work.

Issue V:  Did the referees and assessment board members discriminate against the complainant?

89 The complainant submits that the referees and assessment board members discriminated against him in this appointment process because of his race, colour and ethnic origin. According to the complainant, the respondent thus breached the CHRA and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter). The complainant is a black male. He did not indicate his ethnic origin.

90 Pursuant to s. 80 of the PSEA, in order to determine whether a complaint is founded pursuant to s. 77, the Tribunal can interpret and apply the CHRA.

The analytical framework of the CHRA for allegations of discrimination

91 Section 7 of the CHRA stipulates that, to refuse to employ or continue to employ any individual or, in the course of employment, to differentiate adversely in relation to an employee is a discriminatory practice directly or indirectly, if it is based on a prohibited ground of discrimination. Section 3 of the CHRA lists the prohibited grounds of discrimination, which include race, colour and ethnic origin.

92 In a human rights context, the complainant has the burden of establishing a prima facie case of discrimination. In Ontario Human Rights Commission v. Simpson‑Sears, [1985] 2 SCR 536 (also known as the O’Malley decision), the Supreme Court of Canada described the test for establishing a prima facie case of discrimination:

28 ... The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent‑employer...

93 The Tribunal must therefore determine whether, if believed, the complainant’s evidence is complete and sufficient to justify a finding of discrimination, in the absence of an explanation from the respondent. If the complainant succeeds in establishing a prima facie case of discrimination, the respondent then has the burden of providing a reasonable explanation to demonstrate that the discrimination did not occur the way it is alleged or that the conduct was, in one way or another, not discriminatory. See Grant v. Manitoba Telecom Services Inc., 2012 CHRT 10, at para. 49.

94 In this case, the evidence put forth by the complainant to support his allegations is circumstantial. The Federal Court indicated in Canada (Human Rights Commission) v. Canada (Department of National Health and Welfare), 1998 CanLII 7740, at para. 17 (Chopra F.C.), that, where no direct evidence is available, discrimination may be established by way of inference, through the use of circumstantial evidence. This type of evidence depends on a series of facts that, when combined, may prove discrimination.

95 The applicable test for reviewing circumstantial evidence was described by Beatrice Vizkelety in Proving Discrimination in Canada (Toronto: Carswell, 1987), on page 142. The following excerpt of that work was used by the Federal Court in Chopra F.C with approval:

The appropriate test in matters involving circumstantial evidence, which should be consistent with this standard [of preponderance of the evidence], may therefore be formulated in this manner: an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses.

Did the complainant establish a prima facie case of discrimination?

96 The complainant submits that the assessment board should not have accepted the references given by Ms. Giroux and Ms. Clément because they discriminated against him when he was a PRRA Officer. He also argues that the assessment board members discriminated against him.

97 With regard to the referees, the complainant’s allegation is based on two facts. First, in November 2011, the respondent made several appointments, including the complainant, to PRRA Officer positions on an acting basis for six months. The respondent renewed the complainant’s acting appointment for a period of six months, while it renewed the acting appointment of the other persons for a period of one year. Second, the complainant is the only employee in the PRRA division whose records of decision were reviewed by Ms. Giroux.

98 With regard to the assessment board members, the complainant’s allegation is based on the fact that he was, according to him, the only employee in the PRRA division who was eliminated from the appointment process because of an unfavourable reference.

99 The Tribunal finds that the sole fact that the complainant believes that these events are due to prohibited grounds of discrimination does not constitute “complete and sufficient” evidence to establish a prima facie case of discrimination as required by the Supreme Court in O’Malley. The evidence is so minimal as to have no effect in law. In Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, the Canadian Human Rights Tribunal (CHRT) used a similar reasoning by concluding that the simple fact that a person believes that he or she was treated differently based on a prohibited ground of discrimination is not sufficient to establish a prima facie case of discrimination:

[41] The question that I am left with is this: if an employee believes that someone in a different ethnic group is doing the same job, and receiving a higher wage, is that enough to establish a prima facie case of discrimination? I think there must be something more. There must be something in the evidence, independent of the complainant’s beliefs, which confirms his suspicions. I am not saying that a complainant’s beliefs do not have any evidentiary weight. It depends on the circumstances. But an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough.

100 In dismissing the application for judicial review in Filgueira, the Federal Court held that the CHRT’s finding that the evidence was so minimal as to have no effect in law satisfied the no prima facie evidence test (Filgueria v. Garfield Container Transport Inc., 2006 FC 785).

101 The complainant must also demonstrate that the prohibited grounds of discrimination (race, colour or ethnic origin) were factors in the respondent’s alleged conduct (in this case, unfavourable references from Ms. Clément and Ms. Giroux). However, the complainant failed to establish this fact.

102 During the hearing of this complaint, the complainant entered into evidence more than 100 documents contained in two binders. The respondent asked the Tribunal not to take into consideration any documents to which the complainant did not refer at the hearing. Among these hundred or so documents is a table showing the representation of visible minorities in the Quebec Region of CBSA. The complainant did not refer to this document at the hearing. It was only upon careful review of the documentary evidence that the Tribunal saw this document. Although the complainant never referred to this document at the hearing, the Tribunal will make some comments about it.

103 This evidence is insufficient to allow the Tribunal to conclude that the respondent engaged in discriminatory practices against members of visible minority groups who submitted an application in this appointment process.

104 Even if there had been statistical evidence of the under‑representation of visible minorities in FB‑05 Hearings Officer positions in Quebec, it would not be possible to conclude that this under‑representation necessarily arises from systemic discrimination, as explained by the CHRT in Chopra v. Canada (Department of National Health and Welfare), [2001] C.H.R.T. No 20, QL) at paras. 236 and 237:

... However, without a more detailed review of existing policies and staffing actions, one cannot be certain that systemic discrimination is the cause of under‑utilization. A more in‑depth study, for example, could demonstrate that too few members of that group are applying for promotions. One could inquire as to why that is the case and a further examination may show that this is linked to some discriminatory activity. But I find that mere reliance on the utilization rate without further analysis does not assist meaningfully in the establishment of circumstantial evidence of discrimination.

105 The Tribunal therefore finds that, on the whole, even if it were true, the complainant’s evidence fails to establish prima facie that the complainant’s race, colour or ethnic origin were factors in the decision not to appoint him to the position in question.

Reasonable non‑discriminatory explanation

106 Although the above conclusion is sufficient to dispose of the allegation of discrimination, the Tribunal is of the view that the respondent has also provided a reasonable non‑discriminatory explanation for not appointing the complainant as a result of the appointment process in question.

107 Ms. Clément explained in her testimony that, in November 2011, she had appointed five people to PRRA Officer positions on an acting basis. She renewed the complainant’s acting appointment for a period of six months, instead of 12 months as was the case for the other four people, because of weaknesses in the complainant’s work performance. The Tribunal notes that these weaknesses are discussed at length in the documents that the complainant himself entered into evidence, including the performance report completed by Ms. Giroux on October 4, 2011, and the email from Ms. Clément on October 28, 2011, in which Ms. Clément explained to the complainant that she was not renewing his acting appointment again because he had not achieved his work objectives.

108 Ms. Clément explained why she decided that Ms. Giroux would check the complainant’s decisions. The records of decision written by PRRA Officers were often reviewed by coaches to ensure that they met the standards established by the respondent. Some officers also submitted their records of decision to Ms. Giroux. Toward the end of his acting appointment, the complainant asked Ms. Clément if he could work without a coach. Ms. Clément granted the request on the condition that Ms. Giroux would check his decisions because the complainant had not established that he could work unsupervised.

109 With regard to the complainant’s allegation that he was the only employee in the PRRA division who was eliminated from the appointment process because of an unfavourable reference, Ms. Raymond stated in her testimony that the complainant was not in a position to make that statement because he did not have access to the references of all the other candidates. The complainant did not state at the hearing that he had consulted the other candidates’ references.

110 The Tribunal is satisfied with these explanations. It concludes that the complainant was not appointed to the position because he failed to establish during the appointment process that he possessed three of the essential qualifications established for the position. The prohibited grounds of discrimination that he mentioned had no bearing on this decision.

The Charter

111 The complainant submits that the respondent breached s. 15(1) of the Charter, which stipulates that every individual has the right to the equal benefit of the law without discrimination based on race, colour or ethnic origin. He bases this allegation on the same facts given above concerning the CHRA. Although the method used to determine whether there was discrimination is different under these two pieces of legislation, both involve different treatment because of a prohibited ground of discrimination. Given that the Tribunal already concluded in its analysis of the CHRA that the complainant’s race, colour and ethnic origin were not factors in the decision not to appoint the complainant to the position in question, the Tribunal concludes, for the same reasons, that the complainant failed to establish that the respondent breached s. 15(1) of the Charter.

Decision

112 For all these reasons, the complaint is dismissed.

John Mooney
Vice-Chairperson

Parties of Record

Tribunal File:

2012-0973

Style of Cause:

Gandhi Jean Pierre and the President of the Canada Border Services Agency

Hearing:

February 7, 8 and 22, 2013
Montreal, Quebec

Date of Reasons:

August 27, 2013

APPEARANCES:

For the complainant:

Gandhi Jean Pierre

For the respondent:

Léa Bou Karam

For the Public
Service Commission:

Marc Séguin
(written submissions)