FPSLREB Decisions

REASONS FOR DECISION

1        A hearing into these consolidated complaints is scheduled to take place on February 23 and 24, 2016. However, the respondent has made a motion to the Board requesting that the complaints be dismissed because they are moot. For the reasons that follow, I grant the respondent’s request and dismiss the complaints.

2        On May 9, 2014, Ms. Obioha (the “complainant”) filed a complaint pursuant to s. 77(1) of the Public Service Employment Act (the “Act”). In her complaint, she alleged an abuse of authority in the choice of process concerning the acting appointments of two employees to the position of Service Canada benefits officer (SCBO; PM-02) resulting from two internal non-advertised appointment processes. Given that the complaint was about two appointments, two separate complaint files were opened. They were subsequently consolidated.

3        The acting appointments were for seven months, concluding on October 31, 2014. The complainant occupied a position at the PM-01 group and level when the acting appointments were made. She states in her complaints and in the allegations that shewants to be “given the same opportunity”.

4        The respondent argues that the complaints should be dismissed as the matter is now moot because after filing the complaints, the complainant participated in an advertised process for an SCBO position and was appointed on an acting basis for two successive periods totalling eight months (from September 15, 2014, to June 30, 2015). On June 1, 2015, before the second term was over, the complainant was appointed on an indeterminate basis to an SCBO position.

5        For the following reasons, the motion is granted, and the complaints are dismissed.

6        The respondent relies upon the former Public Service Staffing Tribunal (the “Tribunal”) decision in Dubord v. Commissioner of the Correctional Service of Canada, 2013 PSST 0010, in support of its motion. In Dubord, the complainant was initially screened out of an advertised appointment process. At the exchange of information that took place between the parties after the complaint was filed, the complainant raised some points about the assessment of his qualifications, as a result of which the respondent decided to reassess him. The respondent determined that he was fully qualified and appointed him to one of the positions.

7        In finding the complaint moot, the Tribunal concluded at paragraph 48 that there was “… no longer a dispute between the parties” and that “[t]he Tribunal’s decision would not affect the rights of the parties.”

8        At paragraph 40, the Tribunal referred to the Supreme Court of Canada case of Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, as it sets out the law in Canada related to the doctrine of mootness. The Court noted in that judgment that the doctrine of mootness is an aspect of a policy or practice such that a court may decline to decide a case when its decision will not have the effect of resolving some controversy that affects or may affect the parties’ rights. If the court’s decision will have no practical effect on such rights, it may decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. Accordingly, if subsequent to the initiation of the action or proceeding events occur that affect the parties’ rights, the case is said to be moot. This general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from it.

9        The approach in cases considering mootness involves a two-step analysis. First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is in the affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

10        In Dubord,at para. 42, the Tribunal summarized the two-step test for mootness arising from Borowski as follows:

(a) Is there still an issue, that is, a tangible and concrete dispute, between the parties?

(b) If there is no longer a dispute between the parties, should the Tribunal still exercise its discretion to rule on the merits of the complaint?

11        In light of the complainant being appointed on an acting basis to a PM-02 position within two months after the appointments to which the complaints relate were made, I find the first step of the mootness test as set out in Borowski has been established. Adopting the language of the Tribunal in Dubord, there is no longer a dispute between the parties, and the Board’s decision in this case would not affect the parties’ rights.

12        However, as the Tribunal also pointed out in Dubord, at para. 44, a complaint does not necessarily become moot merely because the complainant is appointed to the position he or she is seeking. In some cases, a dispute may remain if there are reasons to take corrective action, even if the person has been appointed to the position at issue.

13        In her written response to the respondent’s motion, the complainant argues that the Act requires employers to use employment practices that are “fair and transparent” and those to whom the authority to appoint has been delegated must not abuse that authority by appointing unqualified individuals, thus “… creating and fostering an avenue for favouritism.” These remarks are similar to statements made in her allegations that favouritism and unfair practices could cause “… stress and mental illness to unfavoured employees.” She thus appears to express a concern about employees other than her.

14        The Federal Court considered the issue of the broad remedial powers of one of this Board’s predecessors, the Tribunal, in the case of Canada (Attorney General) v. Cameron, 2009 FC 618. The Court noted at paragraph 18 that: “… any corrective action ordered by the Tribunal must address only the appointment process that is the subject of the complaints before it. The corrective action must aim at remedying the default identified by the Tribunal in hearing the complaint before it …”.

15        Given this pronouncement by the Federal Court and the fact that a complainant is not entitled to bring s. 77 complaints on behalf of others (see Evans v. Deputy Minister of Indian Affairs and Northern Development, 2007 PSST 0004), I can deal only with the allegations of abuse of authority specifically raised by this complainant and not broaden the scope of my inquiry into what might have happened to others or what risks might arise to others in the future from similar conduct.

16        The complainant has not sought any corrective action other than being “given the same opportunity”, which, as previously mentioned, has already been addressed and resolved.

17        Therefore, I conclude that the first part of the mootness test has been satisfied; there is no longer a dispute between the parties.

18        The second part of the test consists of determining whether, in spite of the complaints being moot, their circumstances warrant exercising my discretion to hear them. As the Tribunal noted in Dubord, at para. 49, this could be the case, for example, when a complaint raises important issues that could affect staffing in general or if the respondent’s alleged behaviour is a gross (or “flagrant” as rendered in the original French text of the decision) violation of the Act, which I take to mean circumstances in which there appears to be a serious error on its face.

19        An example of such serious errors can be found in Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0024, in which the Tribunal found the complaints substantiated. The respondent in that case was found to have committed six serious errors and omissions that as a whole constituted an abuse of authority.

20        In contrast to the significant and serious errors and omissions that were alleged and proven in Robert and Sabourin, the complainant in the present case only makes some remarks about non-advertised processes and alleges that her requests for an explanation of the rationale for selecting the appointees were refused. In reply, the respondent submits that it complied with the departmental policy on “Criteria Applicable to Non-Advertised Appointment Process” and further that it complied by posting an “Information Regarding Acting Appointment” on the “Publiservice” website.

21        The complainant states that she was qualified and that she wanted to be considered for the two acting appointments giving rise to this case. However, s. 30(4) of the Act specifies that there is no requirement to consider more than one person when making an appointment on the basis of merit. In Jarvo v. Deputy Minister of National Defence, 2011 PSST 0006 at para. 7, the Tribunal held that choosing to conduct a non-advertised process is not an abuse of authority in itself. Furthermore, as already mentioned, the complainant’s general concerns about the use of non-advertised processes are not justified as their use is specifically contemplated by the Act. The fact that non-advertised processes were used to appoint the appointees on an acting basis is not indicative of a serious error, on its face.

22        Thus, in my view, the complainant has not made any allegations in her complaints of any gross or flagrant violation of the Act that would justify exercising my discretion to hear them, even though they are moot.

23        The respondent’s motion to dismiss the complaints is granted, and I make the following order:

Order

24        The complaints are dismissed.