FPSLREB Decisions

Reasons for Decision

Introduction

1 Louis Cannon, the complainant, participated in two advertised internal appointment processes to staff, on an indeterminate basis, Boatwain’s mate positions at the SC-DED-04 group and level, and Boatswain positions at the SC‑DED-05 group and level, in the Canadian Coast Guard (CCG), an agency of Fisheries and Oceans Canada (DFO). The complainant was eliminated from the appointment processes because he failed to meet the essential qualifications in both processes.

2 The complainant alleges that the Deputy Minister of DFO, the respondent, abused its authority in the application of merit. The complainant alleges in particular that the respondent changed the merit criteria during the process, that the assessment board members were in a conflict of interest, that they should have chosen other referees, and that they improperly assessed his qualifications. The respondent denies all these allegations.

3 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 complaints.

4 For the reasons set out below, the Tribunal finds that the complainant failed to establish that the respondent abused its authority in the application of merit in these appointment processes.

Background

5 On August 13, 2010, the respondent posted a Job Opportunity Advertisement for the positions mentioned above.

6 The assessment board was composed of Dany Boudreault, Commanding Officer (CO), who was the chairperson; Yves Richard, Boatswain; and Lise Richard, Superintendent, Marine. Ms. Richard was the delegated manager. Nathalie Doiron acted as human resources advisor.

7 The assessment board assessed the candidates in both appointment processes by reviewing their applications and conducting reference checks. For the Boatwain’s mate position, the candidates also had to undergo a practical examination that consisted of manoeuvring a lifting appliance.

8 The assessment board concluded that the complainant did not meet the “interpersonal relations” qualification in the process to staff the position of Boatwain’s mate, and that he did not meet the “interpersonal relations” and “leadership” qualifications in the process to staff the position of Boatswain. He was therefore eliminated from both appointment processes.

9 On July 25, 2011, the respondent sent the complainant a notice of two appointments to the position of Boatwain’s mate, and another notice of four appointments to the position of Boatswain.

10 On July 28, 2011, the complainant filed with the Tribunal two complaints of abuse of authority pursuant to s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (PSEA).

11 The two complaints were heard together because the complainant submitted essentially the same allegations in both cases.

Issues

12 In order to determine whether the respondent abused its authority in the application of merit in these appointment processes, the Tribunal must decide the following issues:

1. Did the respondent abuse its authority in the establishment of the merit criteria?
2. Did the respondent abuse its authority in its assessment of the complainant’s qualifications?

Analysis

13 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.”

14 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 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.) In Canada (Attorney General) v. Lahlali, 2012 FC 601, the Federal Court confirmed that the definition of abuse of authority set out in s. 2(4) of the PSEA is not exhaustive and that abuse of authority can include other forms of inappropriate behaviour (paras. 21 and 38).

15 However, as is clear from the preamble and the scheme of the PSEA, minor errors generally do not constitute an abuse of authority. Whether or not an error constitutes an abuse of authority will depend on the nature and seriousness of the error. 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, for example, Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008.

16 As the Tribunal has established in many decisions, 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:  Did the respondent abuse its authority in the establishment of the merit criteria?

17 The complainant alleges that the assessment board changed the merit criteria during the appointment process, replacing the “leadership” qualification with “judgment.” According to the complainant, that change violates PSC policy.

18 In a letter dated July 25, 2011, Ms. Richard explained to the complainant why the assessment board had selected the appointees for the Boatwain’s mate position. Under the heading “Result of the essential qualification for personal suitability” [translation], Ms. Richard stated that the appointees had been selected on the basis of their leadership and reliability. However, in a letter dated August 16, 2011, Ms. Richard wrote that the assessment board had selected the appointees on the basis of their judgment and reliability.

19 The Tribunal accepts the explanation given by Ms. Doiron in her testimony indicating that the respondent did not change the merit criteria during the appointment process. Ms. Doiron stated that an error had been made in the July 25, 2011, letter. The individuals mentioned in that letter were not selected on the basis of their leadership, as that qualification was not one of the merit criteria listed in the Statement of Merit Criteria (SMC) for the position of Boatwain’s mate. The August 16, 2011, letter corrected that error by specifying that the appointees had been selected on the basis of their judgment, one of the criteria listed in the SMC, and not on the basis of their leadership. Furthermore, the Tribunal notes that the complainant failed to submit evidence to establish that the respondent had prepared a different SMC or that it had assessed the qualification of “leadership” for the position of Boatwain’s mate.

Issue II:  Did the respondent abuse its authority in its assessment of the complainant’s qualifications?

20 The complainant submits that the respondent abused its authority in a number of ways in the assessment of his qualifications. According to the complainant, two assessment board members were in a conflict of interest, all of the board members were biased against him, one of the members was not qualified to assess his leadership, the assessment board inappropriately selected the referees, and the assessment board improperly assessed the referees’ comments as part of the reference check. Furthermore, the board improperly assessed an examination that involved manoeuvring a lifting appliance, and it refused to verify the information that the complainant had provided to it during the informal discussion.

The assessment board members

21 The complainant submits that Mr. Richard’s and Ms. Richard’s participation in this appointment process constituted a conflict of interest because they are brother and sister.

22 The Tribunal stated in Sampert v. Deputy Minister of National Defence, 2008 PSST 0009, at para. 53, that there is no provision in the PSEA for the composition of an assessment board:

There is no provision in the PSEA which requires a deputy head to establish an assessment board or that it have a certain composition (for example, to have a human resources officer on the board). Whether an assessment board is improperly constituted is a question of fact which depends on the specific complaint and the evidence presented at the hearing.

23 Ms. Richard explained that Mr. Richard contributed to the development of the reference questionnaire and participated in the test designed to assess the “ability to manoeuver lifting appliances”. She and CO Boudreault chose Mr. Richard to participate in that test because CCG ships were equipped with such appliances, and Mr. Richard had been a boatswain for over ten years on these ships.

24 The Tribunal does not see how the family relationship between Mr. Richard and Ms. Richard would put them in a conflict of interest. The complainant failed to establish how and why this relationship could have influenced the assessment of his qualifications. He failed to establish how his success or failure in this appointment process would affect their personal interests.

25 The complainant also submits that Mr. Richard was in a conflict of interest because he was part of the assessment board while also acting as a referee for the complainant. First, the Tribunal notes that, as explained above, the role of Mr. Richard as an assessment board member was limited to his contribution to the development of the reference questionnaire and his participation in the exercise designed to assess the ability to manoeuver a lifting appliance. He did not participate in the assessment of the complainant’s references, including the reference he himself provided. That being said, the Tribunal finds nothing to indicate that being both an assessment board member and a referee constitutes a conflict of interest. See, for example, Robertson v. Deputy Minister of National Defence, 2010 PSST 0011.

26 The complainant also submits that all the assessment board members were biased against him. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL), the Supreme Court of Canada described the standard 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 set out by the Supreme Court also apply to assessment board members in the context of an appointment made under the PSEA. See, for example, Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010, at paras. 64-71.

27 The complainant’s allegation regarding Mr. Richard is based on the fact that Mr. Richard supervised him for nearly eight years and almost never spoke to him during all those years.

28 Nicole Leclerc has worked for the CCG for 12 years. She is a seawoman, and Mr. Richard has been her supervisor since 2008. She has known the complainant since 2005. She worked with him in 2008, and they became friends. According to Ms. Leclerc, the relationship between Mr. Richard and the complainant had been one of conflict and tension for several years. They almost never spoke to one another. However, they never argued in front of her.

29 Mr. Richard stated in his testimony that he had not had any problems with the complainant, but that he was not friendly with him. Mr. Richard added that the complainant was a seaman, and a boatswain rarely speaks directly to a seaman.

30 Ms. Richard also stated that there was no conflict between the complainant and Mr. Richard.

31 The Tribunal notes that the lack of communication between Mr. Richard and the complainant may indicate that there was some tension between them. However, this lack of communication does not in itself establish that Mr. Richard was biased against the complainant. There is no evidence that they argued during the years in which Mr. Richard was the complainant’s supervisor. No one referred to a specific incident that would establish a conflict between them. A reasonably informed bystander could conclude that their relationship was not friendly, but could not reasonably perceive bias on the part of Mr. Richard based on the simple fact that he and the complainant rarely spoke to one another.

32 The complainant also submits that Ms. Richard was biased against him. He bases his allegation on the fact that, since she was appointed to her position in 2008, he has received few acting appointments; that she once told him that he seemed like someone who would leave the CCG; that she also told him he would never be a captain in her fleet; and that she had yelled during the informal discussion.

33 Ms. Richard stated that she never made those statements, and that she never yelled during the informal discussion. Ms. Doiron and CO Boudreault also stated that Ms. Richard had not yelled during the informal discussion. Ms. Doiron added that Ms. Richard had simply “raised her voice” [translation].

34 With regard to acting appointments, Ms. Richard stated that she appointed the complainant to an acting position on two occasions, once in summer 2011, and again in January 2012. The Tribunal does not have enough information to determine whether the complainant was appointed less frequently than his colleagues. The complainant stated that some colleagues received more acting appointments than he did, but he did not give the Tribunal enough information to determine the extent of this disparity. The fact that the complainant was appointed to an acting position only twice is not enough to establish a reasonable apprehension of bias.

35 The Tribunal cannot draw a conclusion with respect to the statements made by Ms. Richard. Aside from the fact that she denies having made them, they are vague and subject to a number of interpretations. There is not enough context to determine what those statements mean. For example, Ms. Richard’s observation about the complainant’s leaving the CCG does not necessarily mean that she wanted him to leave. With respect to the yelling during the informal discussion, contrary to the complainant’s statements, the other three people present at that meeting stated that Ms. Richard did not yell. It appears that she simply raised her voice. Even if Ms. Richard had yelled, this does not necessarily demonstrate bias against the complainant. The Tribunal therefore finds that, taken individually or as a whole, the complainant’s evidence is not sufficient to establish that Ms. Richard was biased against him.

36 The complainant submits that CO Boudreault was also biased against him. He bases this argument on a statement that CO Boudreault allegedly made in 2009 or 2010. The respondent had asked the complainant to take an acting position as the first officer on CO Boudreault’s ship. The complainant refused that offer in favour of a colleague who wanted the job. The complainant later found out that CO Boudreault had pressured management not to allow the complainant to work on his ship. A colleague informed the complainant that CO Boudreault had told management that, if the complainant were to come work on his ship, he would go work elsewhere.

37 CO Boudreault stated that he did not want the complainant to come work on his ship because, at that time, he was having to spend a great deal of time supervising a first officer who was on a remediation plan, meaning that the officer required continuous supervision and training. The complainant did not have much experience as a first officer. CO Boudreault did not have the time to supervise two employees who had little experience. He therefore wanted management to assign someone who had more experience than the complainant. The complainant failed to establish that this explanation was false. The Tribunal therefore accepts this explanation and finds that there is insufficient evidence to conclude that CO Boudreault was biased against the complainant.

38 The complainant argues that Mr. Richard could not speak to his leadership because Mr. Richard himself lacked leadership. The complainant referred to the testimony of Ms. Leclerc, who stated that Mr. Richard would have difficulty assessing an employee’s leadership because he lacked leadership himself. According to Ms. Leclerc, Mr. Richard avoided conflicts with his employees.

39 The Tribunal cannot accept the complainant’s argument. First, the Tribunal notes that Mr. Richard did not assess the complainant’s leadership; his role was to answer a questionnaire that referred to the complainant’s leadership. The Tribunal finds that the complainant failed to establish that Mr. Richard lacked leadership. Only Ms. Leclerc was of this view. Yet even she mentioned some of Mr. Richard’s leadership qualities: he effectively led his employees, he delegated duties to them, he offered support to them, and he encouraged them in their work. Furthermore, Mr. Richard is not the only one who indicated during the reference checks that the complainant lacked leadership. Jean‑Luc Dugal, who was also a referee for the complainant, also referred to the complainant’s lack of leadership.

The choice of referees

40 The complainant submits that the assessment board should have selected the referees from among the people that he had suggested. The respondent had asked candidates to suggest two people; the complainant named five. The respondent accepted only one of the people suggested by the complainant, CO Mario Bernard. According to the complainant, by selecting the referees, the assessment board pre‑determined the candidate’s assessment.

41 CO Boudreault explained that the assessment board had selected the following people as referees: Mr. Richard, Mr. Dugal and CO Bernard. The assessment board used the following criteria to make this choice: the period during which the referee had worked with the complainant, whether that period was recent, whether the referee had supervised the complainant directly, and the referee’s availability. For the types of positions at issue in these complaints, the respondent typically selected senior ship’s officers and boatswains. The respondent rarely chose commanding officers because, generally, they do not directly supervise seamen. Although Mr. Bernard is a commanding officer, the assessment board selected him anyway because he was commanding a ship with a crew of only four people. He was therefore able to closely supervise the complainant’s work.

42 The Tribunal finds that the complainant failed to establish that the respondent abused its authority in the selection of referees. The Tribunal already found that nothing requires the assessment board to select the people suggested by the candidate to act as referees. See, for example, 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.

43 In Dionne, the Tribunal also stated that “what is important is that the referee is familiar with the work of the candidate, and can provide sufficient information to allow the board to conduct an adequate assessment of a candidate’s qualifications.” In this case, the assessment board used valid criteria to select the referees, specifically, their knowledge of the complainant’s work. The Tribunal is of the view that Messrs. Richard and Dugal had sufficient knowledge of the complainant’s work, as Mr. Richard had supervised the complainant for eight years, and Mr. Dugal had supervised the complainant for two years. The case of CO Bernard is more problematic because he had supervised the complainant for only 28 days, but it is the complainant who suggested him, and his reference did not contribute to the complainant’s elimination from the process because the reference he gave was favourable to the complainant.

The assessment of the complainant’s qualifications

44 The personal suitability criteria were assessed using a series of questions posed to the three referees. CO Boudreault met with the referees in person to take the references. He showed them the reference questionnaire, asked them the questions on the questionnaire, summarized their answers, then read to them what he had written. CO Boudreault and Ms. Richard then consolidated the referees’ answers and assigned a score to the candidates’ qualifications using the definitions of the qualifications and a marking scheme.

45 The complainant submits that the assessment of his qualifications was full of errors. According to him, he is qualified for the position. He is currently a seaman at the SC-DED-02 group and level. He has worked on a number of CCG ships since 1982 and has a master’s certificate.

46 As the Tribunal has established in a number of decisions, its role is to determine whether there was an abuse of authority, not to re‑assess the candidates. See, for example, Broughton v. Deputy Minister of Public Works and Government Services et al., 2007 PSST 0020; and Jalal v. Canada (Human Resources and Skills Development), 2013 FC 611.

47 The references given by Messrs. Richard and Dugal concerning the complainant’s interpersonal relations and leadership were negative. For example, one of the questions designed to assess interpersonal relations asked the referee whether the complainant worked to achieve a common objective or pursued his own interests. Mr. Richard replied that the complainant sought “his own interests” [translation], and Mr. Dugal replied that the complainant “pursued his own interests 100% of the time” [translation].

48 The reference given by CO Bernard differs from the other two. He provided a rather positive reference for the two disputed qualifications. For example, to the same question mentioned above on the subject of pursuing the organization’s interests, he replied “had no problems” [translation]. However, his answers were all brief; he often replied “no problem” [translation]. In two cases, he answered only “yes” [translation], without giving further details.

49 In his testimony, CO Bernard explained that he had worked with the complainant on a ship for two 14‑day periods in 2010. With respect to the complainant’s relationships with his co‑workers, CO Bernard stated that the complainant sometimes lacked tact, “but nothing more” [translation].

50 The Tribunal finds that the assessment board could reasonably conclude, based on Messrs. Richard’s and Dugal’s comments, that the complainant did not possess these two qualifications. The Tribunal also finds that the assessment board could reasonably give more weight to the references provided by Messrs. Richard and Dugal because those references better reflected the complainant’s interpersonal relations and leadership than the reference given by CO Bernard, as Messrs. Richard and Dugal had supervised the complainant for significantly longer periods. CO Bernard had supervised the complainant for only 28 days.

51 The complainant argues that the references were incomplete because CO Boudreault summarized the referees’ answers rather than transcribing them word for word. The Tribunal finds this allegation to be unsubstantiated. There is nothing irregular in having the person who asks the questions summarize the referees’ answers, as long as the summary accurately reflects what they said. At the hearing, all the referees reviewed the answers that CO Boudreault had transcribed, and they all stated that the notes taken by CO Boudreault essentially reflected what they had said. The complainant could not identify an answer element that CO Boudreault allegedly forgot to record. The complainant therefore failed to establish that those summaries did not accurately reflect the referees’ comments.

52 Ms. Leclerc stated that the complainant had good leadership skills. He had taught her a great deal when she was a new employee. The assessment board did not have Ms. Leclerc’s opinion in front of it during the assessment because she was not a referee. Furthermore, as explained above, the Tribunal’s role is not to re‑assess the complainant at the hearing. Moreover, Ms. Leclerc’s statement is not sufficient to establish that Messrs. Richard’s and Dugal’s comments concerning the complainant’s leadership were wrong. Ms. Leclerc, the complainant’s colleague and friend, has never supervised him, whereas Messrs. Richard and Dugal have had the opportunity to observe his work as his supervisor.

53 The complainant also stated that he has good relationships with his colleagues because he has often had them over to his home. The Tribunal finds that this fact is not sufficient to establish that Messrs. Richard’s and Dugal’s comments concerning his interpersonal relations were wrong.

54 The complainant submits that the assessment board could not rely on these references because the referees’ answers lacked details and specific facts. Some referees answered certain questions with only one word. The Tribunal finds that the complainant failed to establish that the references were not sufficiently detailed. It is true that CO Bernard answered with a simple “yes” [translation] to certain questions. However, this referee’s answers did not cause the complainant to fail in the appointment process, since CO Bernard’s comments were favourable to the complainant. The complainant failed because of the unfavourable references given by Messrs. Richard and Dugal. Their descriptions of the two disputed qualifications were more detailed.

55 The complainant submits that several of Messrs. Richard’s and Dugal’s answers included a score, suggesting that the referees had assessed these qualifications. According to the complainant, a referee should not assign a score to a qualification.

56 Mr. Richard stated that CO Boudreault had asked him to assign a score to his answers.

57 CO Boudreault stated that he had written a score beside the answers he had recorded, but that the assessment board did not use those scores.

58 Ms. Doiron stated that she had explained to the assessment board members how to assess the references. She told them that they had to review the information provided by the referees and conduct their own assessment of that information. They were not to take into consideration a score assigned by the referees.

59 Ms. Richard stated that the assessment board did not take this scoring into account in its assessment. As explained above, she and CO Boudreault discussed the referees’ answers and, together, they assigned a score to the qualifications.

60 The Tribunal finds that the complainant is right in saying that it is the assessment board members, not the referees, who must assess the candidates’ qualifications. In this case, however, the evidence indicates that it was indeed the assessment board that assessed the complainant’s qualifications. It is not clear why CO Boudreault had asked some referees to assign a score to their answers, but he and Ms. Richard both stated that the assessment board ignored the scores assigned by the referees and that they conducted their own assessment of the answers.

61 The complainant submits that the assessment of the answer to question P.S. 1.4 on the reference questionnaire is inaccurate because Mr. Dugal’s comments were inaccurate. Mr. Dugal had replied that the complainant had, without consulting his supervisor, removed the beams that had been placed on the bridge of the ship for safety reasons. The complainant stated that, on the contrary, he had acted with the authorization of CO Serge Brulé, who was the commanding officer of the ship. According to the complainant, CO Brulé had given that order to annoy another commanding officer with whom he did not get along. The complainant brought this fact to the attention of Ms. Richard, CO Boudreault and Ms. Doiron during the informal discussion, but they never verified that information. According to the complainant, they should have done so.

62 CO Brulé, now retired, stated in his testimony that he did not remember ordering the complainant to remove the beams on the bridge of the ship that he was commanding at the time, but that it is possible that he had done so. He added that he never would have given such an order to annoy another commanding officer.

63 The Tribunal finds that whether the complainant removed the beams with or without the permission of CO Brulé is irrelevant because the answer to this question did not contribute to the complainant’s elimination from the process—question P.S. 1.4 assessed reliability, and the complainant met that qualification. Since the complainant met that qualification, verifying whether or not the complainant had acted on the order of CO Brulé would have served no purpose.

64 In his testimony, CO Brulé spoke at length about the complainant’s qualifications. The Tribunal cannot take those comments into account because CO Brulé was not part of the assessment board, and the purpose of the complaint hearing is not to re‑assess the complainant.

65 The complainant also submits that the appointment processes were tainted because the reference questionnaires were not signed or dated. The Tribunal finds that there is no requirement for these questionnaires to be signed and dated.

66 According to the complainant, his references were not assessed in a consistent manner. In the reference given by Mr. Dugal, the marking of question P.S. 3.4 of the reference questionnaire indicates “free 25 for all” [translation]. This phrase is not mentioned in the references given by the other referees.

67 The Tribunal finds that there was no irregularity in the marking of that answer. As explained by CO Boudreault, the assessment board gave 25 points out of 25 to all the candidates. It was a way to eliminate question 3.4 for all candidates because it was redundant, as it essentially repeated question 3.2. The respondent therefore treated all the candidates equally. Furthermore, the marking of that question had no effect on the complainant because it dealt with judgment, and the complainant met that qualification.

The crane test

68 The complainant submits that the test designed to assess the candidates’ ability to manoeuver a lifting appliance was poorly administered. The candidate had to manoeuver a crane located in an outdoor area, near Québec City. Mr. Richard administered this examination with a person who worked for a private company.

69 The complainant made several criticisms of this test. He submits that this practical test was not valid because the CCG does not use this type of crane. He also argues that Mr. Richard, who observed the complainant from his truck, did not have a good view of the crane because of the distance from his truck, the way his truck was placed, and the fact that the windows of his truck were foggy because of the cold temperature (the test was administered in January 2011). Furthermore, the crane equipment was defective.

70 Mr. Richard stated that he could see the complainant through the windows of his truck, which was located 40 feet from the complainant.

71 CO Boudreault explained that the assessment board used a crane rather than a lifting appliance such as the ones found on CCG ships to avoid giving an advantage to candidates who would have used those lifting appliances. Mr. Richard added that the principles underlying the operation of the lifting appliances used on ships and the operation of the crane used for the test are the same.

72 The Tribunal finds that the respondent gave a valid explanation for the choice of the crane. The respondent made this choice to avoid giving an advantage to candidates who would have had the opportunity to use lifting appliances on CCG ships. The complainant failed to establish that the principles for handling these two types of devices were not similar and that this test could not assess the candidates’ ability to manoeuver a lifting appliance.

73 The Tribunal notes, however, that the evidence provided by the respondent on this matter is very confusing in two respects. First, it is not clear who assessed this test. Ms. Richard stated that she was not involved in this test. CO Boudreault, who administered the same test for another candidate in Trois-Rivières with the same person from the private sector, stated that they each took notes, but that it was the person from the private sector who assessed the candidate and assigned a final mark. With respect to the complainant, Mr. Richard stated that he and the person from the private sector each filled out an assessment report. Mr. Richard added that he never saw the report filled out by the person from the private sector. It is therefore not clear who assessed this test.

74 It is also not clear whether the complainant passed this test. Mr. Richard’s report gave him a mark of 54.5%, whereas the report filled out by the person from the private sector gave him a mark of 36%. In the document entitled Assessment Report [translation], the complainant scored 45% for this qualification. The document entitled Selection Process SC-DED-04 [translation] also gave a mark of 45%. That same document indicates that “the higher mark prevails” [translation]. This does not appear to have been the case, since the Assessment Report gave the complainant a mark of 45%, but the highest mark is the 54.5% given by Mr. Richard. The respondent never told the Tribunal what the pass mark was for this qualification, and it failed to provide any explanation for these contradictions.

75 Since the respondent never told the complainant that he had failed this qualification and since the respondent stated at the hearing that the complainant met the qualification, a statement that was obviously not disputed by the complainant, the Tribunal finds that the complainant passed this test. Since he passed the test, it is pointless to address the other criticisms that the complainant made regarding this practical examination. Any flaw in the administration of this test is irrelevant because the test is not the cause of the complainant’s elimination from the appointment process. He was eliminated from the process for the position of Boatwain’s mate because he failed to meet the “interpersonal relations” qualification.

76 The complainant submits that the process was irregular in that the respondent gave different reasons for his elimination from the two appointment processes, even though the assessment board used the same questionnaire and the same SMC in both cases. The respondent informed him that he had failed to meet the qualification of “interpersonal relations” in the process to staff the position of Boatwain’s mate, and that he had failed to meet the qualifications of “interpersonal relations” and “leadership” in the process to staff the position of Boatswain.

77 The Tribunal finds that this allegation is not supported by the evidence. The documentary evidence shows that the SMC was not the same for both positions. For the position of Boatswain, the SMC contained an additional merit criterion, namely, “leadership,” a criterion that is not included in the position of Boatwain’s mate.

78 The Job Opportunity Advertisement indicated that “[p]erformance with respect to the qualities under Essential Qualifications marked with an asterisk may be used for appointment purposes.” The complainant stated that there was no asterisk beside the qualification “interpersonal relations” for either appointment process. According to him, it was therefore not necessary to possess this qualification in order to be selected.

79 Ms. Doiron explained to the Tribunal the purpose of the asterisks on the SMC. The candidates had to possess all the essential qualifications to be appointed to a position, as required by s. 30(2) of the PSEA, but the qualifications that were marked with an asterisk were used to identify the most deserving among the qualified candidates. In other words, the qualifications identified with an asterisk were more important than the other essential qualifications, even though the candidates had to possess all the essential qualifications.

80 The Tribunal finds, in light of the explanations given by the respondent, that the fact that the qualification “interpersonal relations” did not have an asterisk does not mean, as the complainant claims, that a candidate who did not possess this qualification could be appointed.

Decision

81 For all these reasons, the Tribunal finds that the complainant failed to establish that the respondent abused its authority in this appointment process. The complaints are therefore dismissed.

John Mooney
Vice-Chairperson

Parties of Record

Tribunal Files:

2011-0611 and 2011-0613

Style of Cause:

Louis Cannon and the Deputy Minister of Fisheries and Oceans

Hearing:

November 15 and 16, 2012, and
February 12 and 13, 2013
Quebec City, Quebec

Date of Reasons:

June 12, 2013

APPEARANCES:

For the complainant:

Michel Cordeau

For the respondent:

Léa Bou Karam

For the Public
Service Commission:

Marc Séguin
(written submissions)