FPSLREB Decisions

Heard at Montreal, Quebec,
February 16 to 18, 2016.

REASONS FOR DECISION

Introduction

1        Gandhi Jean-Pierre, the complainant, applied for a position as a member, classified at the PM-06 group and level, with the Immigration and Refugee Board (IRB or “the respondent”). His application was rejected during the screening stage. He argues that the IRB, through its chairperson, abused its authority by not correctly assessing him due to incorrect assessment tools, by rejecting his application, and by refusing to readmit him to the process.

2        The respondent denies abusing its authority by rejecting his application and by refusing to readmit him to the process. It also denies using incorrect assessment tools.

3        The Public Service Commission (PSC) did not attend the hearing but submitted written observations about its applicable policies and guidelines. It did not take a position on the merits of the complaint.

4        For the following reasons, the Public Service Labour Relations and Employment Board (PSLREB) finds that the complainant did not demonstrate that the respondent abused its authority by rejecting his application because he did not meet one of the essential qualifications required for the position.

Background

5        In February 2011, the respondent launched internal and external appointment processes to staff several member positions at the PM-06 group and level in four Canadian cities in its Refugee Protection Division (RPD).

6        The complainant applied for the advertised internal appointment process. He believed that he satisfied at least one of the essential qualifications required for the position, i.e., recent experience rendering decisions in a quasi-judicial or judicial process or research in a quasi-judicial, judicial, or immigration environment (including refugee status).

7        After assessing the complainant’s application, the assessment committee concluded that he did not satisfy any of the experience qualifications required for the position. So, his application was rejected.

8        The candidates who qualified following the selection process were added to a pool for appointment purposes. Several candidates were appointed to member positions at the RPD.

9        On November 2, 2012, the complainant made an abuse of authority complaint with the Public Service Staffing Tribunal (“the former Tribunal”) under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, s. 12, 13; PSEA). On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed in force (SI/2014-04) and created the PSLREB, which replaced the former Tribunal and the Public Service Labour Relations Board and is responsible for proceedings commenced under the PSEA before November 1, 2014. Consequently, the PSLREB is rendering this decision.

Issues

10        The PSLREB must decide the following questions:

(i) Did the respondent abuse its authority by using assessment tools that according to the complainant were tainted with errors?

(ii) Did the respondent abuse its authority by concluding that the complainant did not satisfy any of the required essential qualifications, i.e. about recent work experience?

(iii) Did the respondent abuse its authority by refusing to readmit the complainant to the appointment process following the informal discussion?

Analysis

Abuse of authority and burden of proof

11        Paragraph 77(1)(a) of the PSEA states that a person in the area of recourse may make a complaint to the PSLREB that he or she was not appointed or proposed for appointment by reason of an abuse of authority in the application of merit. As indicated in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 66, “... abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority.” The complainant bears the burden of proving on a balance of probabilities that an abuse of authority occurred.

The parties’ positions

12        The complainant, who has worked at Citizenship and Immigration Canada (CIC) since September 1998, claims that the screening tools used in the internal appointment process (job opportunity notice, reference document, and appendix) were inadequate, irregular, and deficient, which led to an unfair result. He also argues that his work experience was not correctly assessed. He argues that he has the experience sought in this case but that it was not retained. The job opportunity notice stated that applicants had to meet one of the following four experience requirements:

[Translation]

EXPERIENCE:

FOR THE PM-06 MEMBER POSITIONS, APPLICANTS MUST MEET ONE (1) OF THE FOLLOWING EXPERIENCE REQUIREMENTS*:

Recent experience** rendering decisions in a quasi-judicial or judicial process;

OR

Recent experience** presenting cases before an administrative tribunal or court of justice;

OR

Recent experience** conducting research or investigations in a quasi-judicial, judicial, or immigration environment (including refugee status);

OR

Recent experience** preparing legal advice or providing mediation services in a quasi-judicial or judicial environment.

* If a candidate meets more than one experience qualification, it may be considered an asset. Candidates must demonstrate how they meet all qualifications in their applications.

** Recent is defined as experience acquired in the last five (5) years.

13        Specifically, the complainant argues that the respondent committed an abuse of authority when it assessed his application as it failed to consider his many years of immigration officer experience, during which he had to make decisions and conduct research. He also added that he did not receive a true reassessment during the informal discussion.

14        The respondent argues that in his application, the complainant did not demonstrate that he had the experience required for the position. Ross Pattee, the IRB’s executive director, and Timothy Morin, general counsel and manager, Legal Services, IRB Vancouver, both explained how and why the screening committee concluded that in his application, the complainant did not demonstrate that he had any of the work experience required for the position.

How the internal nomination process was conducted

15        At the time of the appointment process, significant amendments to the Immigration and Refugee Protection Act (IRPA) were expected to come into force on December 15, 2011. Mr. Pattee was hired in July 2011 as deputy chairperson, RPD, IRB. He was then tasked with hiring a significant number of members and coordinating members to hear, as of December 15, 2011, refugee claims filed in Canada. The IRPA amendments finally came into force on December 15, 2012, a year later.

16        The job opportunity notice prepared for the advertised internal appointment process indicated that 105 member positions and 9 coordinating member positions were to be staffed. Mr. Pattee was the delegated manager for that process and other processes (internal and external) that were conducted at the same time and right after. He explained that he received 2991 applications as part of those processes. Therefore, they were important and huge appointment processes for which his motto was to respect in all ways the principles of equity, impartiality, and transparency.

17        Using the job opportunity notice, Mr. Pattee described some of an RPD member’s duties. Among other things, members are independent and impartial decision makers who must decide whether refugee claims will be accepted or rejected under the provisions of the IRPA and its regulations. They must also assimilate, gather, analyze, integrate, and summarize complex original facts to determine the nature of each case; understand and interpret jurisprudence and relevant Canadian, foreign, or international law; and listen to complex legal arguments presented by parties or unrepresented clients. They must also prepare, organize, and plan hearings and pre-hearing conferences; examine and conduct in-depth analyses of files and of the nature of issues; verify relevant facts; determine and clarify the need for additional relevant information; and take appropriate measures.

18        Mr. Pattee specified that since the members hired would need to hear cases as soon as they began to work, it was essential that they be able to properly carry out their duties immediately.

19        Mr. Pattee also provided his assessment of the experience required for each of the four experience requirements in the job opportunity notice. For the first qualification, Mr. Pattee described how he understood “[translation] rendering decisions in a quasi-judicial or judicial process”. According to his description, they are decisions made at a hearing at which the decision maker is able to hold pre-hearing conferences, make interlocutory judgments, swear in witnesses, hear witnesses, apply the rules of evidence, respect the principles of procedural fairness, hear pleas, and make definitive decisions. He explained that a person with that work experience would be suitable to sit as an IRB member.

20        The second qualification was about presenting cases before an administrative tribunal or court of justice. Although it is not the subject of this dispute, Mr. Pattee nonetheless felt it was appropriate to state that he felt that someone who is used to arguing before an administrative tribunal or court of justice would also be suitable to sit as a member. In short, such a person would be familiar with the rules that apply to quasi-judicial or judicial bodies.

21        The third qualification was about conducting research or investigations in a quasi-judicial, judicial, or immigration environment (including refugee status). In that sense, Mr. Pattee explained that the persons referred to in this qualification were those whose work consisted primarily of conducting research or investigations in the fields mentioned. They had to have experience in substantial and complex research. For example, researchers from the RPD’s former research division had such experience; i.e., they were used to undertaking internal research projects, document analysis, and field research. They also had experience analyzing existing research reports prepared by other organizations (governmental and non-governmental). Mr. Pattee added that a person who is used to conducting such research understands the wide range of complex questions that must be analyzed to determine whether refugee claims can be accepted or rejected. Thus, such experience would be beneficial and useful when sitting as a member.

22        The fourth qualification, which is not the subject of this dispute, was about preparing legal advice or providing mediation services in a quasi-judicial or judicial environment. Mr. Pattee specified that a person experienced in preparing legal opinions or acting as a mediator also has relevant legal experience that would be useful when sitting as a member.

23        Mr. Pattee explained that he recruited about 30 IRB managers to make up the screening committees. They examined the many applications received based on the screening criteria set out in the job opportunity notice. The committee members received specific training before screening candidates. Some managers in the regions attended that information session by audio conference. To help with their decision making, they all received a reference document that explained how to assess applications and what to do when uncertainty arose. Some parts of that reference document are relevant to this complaint, as follows:

[Translation]

Qualification	What to accept
Recent experience rendering decisions in a quasi-judicial or judicial process	· Experience acquired in the last 5 years and for at least 12 months. · Rendering decisions must constitute a large part of the duties. · Please see the first page, which provides examples of quasi-judicial and administrative tribunals.
Recent experience conducting research or investigations in a quasi-judicial, judicial, or immigration environment (including refugees)	· Experience acquired in the last 5 years and for at least 12 months. · Conducting research or investigations must constitute a large part of the duties. · Please see the first page, which provides examples of quasi-judicial and administrative tribunals.

24        Mr. Pattee also explained that for the screening-stage decisions to be as coherent as possible, an appendix was included with the reference document, which lists the categories of a priori eligible and ineligible positions or duties and indicates whether the duties carried out meet the relevant experience requirements.

25        Some parts of that appendix are relevant to this complaint, as follows:

[Translation]

CIC - the candidate makes decisions in cases for which humanitarian grounds are cited (e.g., PM-03).	Rendering such decisions does not constitute a large part of the candidate’s duties. Screening decision: The relevant experience requirements are not met, i.e., experience rendering decisions in a quasi-judicial or judicial process. OR If rendering such decisions constitutes a large part of the candidate’s duties, the candidate is considered to meet the requirement of experience rendering decisions in a quasi-judicial or judicial process. [Bold and underlined emphasis in the original]
CBSA or CIC - border services officer or immigration officer (e.g., FB-03 or PM-03)	Decisions made by this candidate are considered primarily administrative. Consequently, they are not decisions rendered in a quasi-judicial or judicial process. Screening decision: The relevant experience requirementsare not met. [Bold emphasis in the original]
CIC - pre-removal risk assessment officers (e.g., PM-04)	Decisions made by this candidate are considered quasi-judicial or judicial. Screening decision: Consequently, if the experience is considerable and corresponds to one of the four screening qualifications, the candidate is considered to meet the requirements.

[Emphasis in the original]

26        Mr. Pattee specified that the reference document and appendix were needed due to the scope of the process. It was the only way to ensure that the approximately 30 managers who made up the screening committees would apply the same general screening procedures.

27        Mr. Pattee took part in the screening exercise that the managers conducted. He handled the more complex cases in which the managers were uncertain of the decisions to render. He specified that the reference document and appendix were tools provided to the managers for advice but that they were not bound by them. The managers had a clear mandate to carefully examine each application to determine whether the candidates met the essential qualifications. Following their reviews of the applications, the managers had to complete a screening sheet and indicate whether all the qualifications were met or if some were not met.

28        After noting the scope of the number of applications received for this and the other related processes and noting the candidates’ diverse views of the meaning of “quasi-judicial process”, Mr. Pattee asked Legal Services to prepare a definition of that expression. It was developed based on the criteria the Supreme Court of Canada set out in 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool), [1996] 3 S.C.R. 919, which indicates that a process is “quasi-judicial” if it essentially includes the following four components: (1) evidence is adduced, (2) arguments are presented, (3) a decision maker hears and decides the case, and (4) the decision maker complies with the requirements of impartiality and independence.

29        Mr. Morin assessed the complainant’s application and noted on a sheet that he did not meet the relevant experience qualification. When he made the assessment, Mr. Morin was the general counsel and manager of Legal Services, IRB Toronto. He began working for the IRB in 2000. Before then, he had worked for several years as a lawyer in the immigration and refugee protection field.

30        The sheet that Mr. Morin completed after assessing the complainant’s application was submitted as evidence. It indicates that the complainant satisfied the education qualification but not the relevant experience qualification. Some handwritten notes Mr. Morin made appear on the sheet next to the experience qualifications. They are shown in the right-hand column as follows:

[Translation]

Recent experience** rendering decisions in a quasi-judicial or judicial process;	None. PRRA officer since November 2010; not enough “recent” experience
Recent experience** presenting cases before an administrative tribunal or court of justice;	None
Recent experience** conducting research or investigations in a quasi-judicial, judicial, or immigration environment (including refugee status);	None
Recent experience** preparing legal advice or providing mediation services in a quasi-judicial or judicial environment	None

31        The complainant’s sheet also has similar annotations next to the asset qualifications.

32        Mr. Morin explained that he rejected the complainant’s application after carefully reviewing the information in his cover letter and résumé while considering the reference document and appendix at his disposal. The complainant described his work experience as follows in his cover letter:

[Translation]

...

Throughout my 12 years at Citizenship and Immigration Canada, I have acquired recent and significant experience in applying the Immigration and Refugee Protection Act and its Regulations, as well as the Citizenship Act and its Regulations.

Immigration and Refugee Protection Act and its Regulations

I have conducted multiple interviews that have led to decisions about applicants’ admissibility to Canada. For example, some interviews led to preparing offence or investigation reports for individuals criminalized or inadmissible for breaching the Immigration and Refugee Protection Act and its Regulations.

I assessed the admissibility of refugee claims in Canada. Several assessments led to detentions for identification or security purposes.

I also assessed applicants’ rights to permanent or temporary residency in Canada. Deserving cases allowed the granting of educational permits, work permits, or visiting permits, as well as permanent resident status for people in several regulatory categories.

I also assessed temporary resident visa applications (40 to 65 per day) at the Canadian embassy in Mexico. I was also responsible for managing and informing Haitian clients at the Canadian embassy in Haiti following the earthquake in that country. I was given that special mandate due to my knowledge of immigration, my experience, and my knowledge of the country’s language.

EXPERIENCE IN IMMIGRATION RESEARCH OR INVESTIGATIONS (ASSET)

In summary, as part of my immigration officer duties, I conducted different research or investigations in partnership with organizations such as the United State [sic] Immigration National System (USINS), Canadian Police Information Centre (CPIC), the Canadian “missing children” program, and the intelligence service of the Canada Border Services Agency.

Some of that research or those investigations led to evaluating criminal equivalencies under the Canadian criminal code. One of my achievements in that context was the arrest and detention of a person suspected of crimes against humanity during the Duvalier regime in Haiti. At the time of that achievement, we had the authority to arrest and detain. Some of my research or investigations also dealt with document fraud.

EXPERIENCE IN A QUASI-JUDICIAL PROCESS (ASSET)

After I started with the pre-removal risk assessment (PRRA) program in November 2010, I now have experience in all Citizenship and Immigration business lines. As a PRRA officer, my role in a quasi-judicial process consists of making assessments and rendering decisions based on the eligibility criteria for protection in Canada, including sections 96 and 97 of the Immigration and Refugee Protection Act. In some cases, a quasi-judicial hearing may be needed under section 167 of the Immigration and Refugee Protection Regulations to complete our research or case study.

EXPERIENCE WITH CULTURAL COMMUNITIES (ASSET)

Citizenship

In terms of citizenship, I have conducted many interviews to determine eligibility for Canadian citizenship. For example, following documentary research and factual background reports, I referred some citizenship applications to different citizenship judges for decisions. Among other things, those reports were about criminality, violations of the Immigration and Refugee Protection Act or its Regulations that affected citizenship, and Canadian residency requirements.

My citizenship officer role also consisted of preparing ceremonies, some of which involved more than 350 participants from several cultures or origins.

...

33        In his résumé, the complainant also described his past duties as an “[translation] information officer/resource person/analyst at the service/supervision level”, which he carried out from August 1998 to March 2002, and as a supervisor at CIC, which he carried out from July 2005 to April 2006. He also described as follows his immigration officer work experience at CIC from April 2002 to October 2010:

[Translation]

POSITION: Immigration, citizenship, visa, and pre-removal risk assessment officer

- Assess and render decisions on different applications for temporary and permanent residence in Canada.

- Assess the eligibility and admissibility of refugee claims.

- Issue offence reports and investigation directives under the Immigration and Refugee Protection Act (e.g., report 44).

- Arrest or recommend the arrest and detention of clientele inadmissible to Canada while considering the Canadian Charter of Rights and Freedoms and other legislation and conventions.

- Research and analyze documentary evidence to make recommendations to border services about work permit exemptions.

- Respond to requests for file updates from lawyers and members of Parliament representing clients. Responsibilities for the foreign workers and client services unit were carried out as part of a 6-month assignment in 2003.

- Prepare and present complex cases to citizenship judges with respect to applicants’ admissibility for Canadian citizenship.

- As a citizenship court clerk, organize and manage extremely large Canadian citizenship ceremonies (350 participants from all nationalities or communities). Citizenship duties were carried out as part of a one-and-a-half-year assignment [05/08 to 10/09].

- Refer to immigration and citizenship legislation and procedural guides, interpret different corollary legislation, and apply jurisprudence fairly and equitably in our analyses and decisions.

- Assignments (2) for six and four weeks at the Canadian embassies in Mexico (October and November 2009) and Haiti (March and April 2010) and render multiple decisions in difficult contexts, including a crisis (e.g., Haiti earthquake).

...

34        Next to that information, in the right margin of the complainant’s résumé, Mr. Morin noted the following: “[translation] No PRRA (pre-removal risk assessment) work was demonstrated during that period”.

35        When he submitted his application, the complainant had held a PRRA officer position since November 2010. In his résumé, he described his PRRA officer work as follows:

[Translation]

- In a quasi-judicial process, assess and render decisions based on the eligibility criteria for granting protection in Canada, particularly considering sections 96 and 97 of the Immigration and Refugee Protection Act

- Conduct research and analyses into conditions in countries and assess the risks faced by applicants if they are to return to their countries.

- If necessary, hold quasi-judicial hearings to assess credibility and complete our research and case study based on the principles of natural justice.

- Assess and render decisions on applications that involve humanitarian considerations, particularly risks to life.

- Become familiar with and apply different legislation and jurisprudence relevant to our decisions.

36        Mr. Morin did not enter anything in the right margin of the complainant’s résumé next to this information.

Recent experience rendering decisions in a quasi-judicial or judicial process

37        Mr. Morin explained that he reviewed the entire content of the complainant’s cover letter and résumé to assess his application. By considering each position he had held and the descriptions of his duties, he first concluded that the complainant had four months of experience rendering decisions in a quasi-judicial or judicial process. He gained that experience as a PRRA officer from November 2010 until his assessment (February 2011). However, the requirement was for 12 months’ experience acquired in the last 5 years.

38        Mr. Morin stated that he carefully reviewed the other duties that the complainant carried out and that were described in his application. He affirmed that he was unable to find another eight months’ experience rendering quasi-judicial or judicial decisions.

Recent experience conducting research or investigations in a quasi-judicial, judicial, or immigration environment (including refugee status)

39        Mr. Morin then concluded that the complainant also had four months of experience as a PRRA officer conducting research in an immigration environment (including refugee status). According to the oral and written instructions that he received, the research referred to in that qualification had to represent a significant portion of the candidate’s duties. Therefore, that qualification could be met by people who spent most of their work conducting research or investigations into one of the areas in question. At the training session, Mr. Pattee also mentioned researchers from the RPD’s former research division as an example of those who conducted substantial and complex research. The research experience accumulated by PRRA officers was accepted since an important part of their duties is to research countries’ situations and to assess the risks applicants will face if they are to return to their countries. The PRRA officer then provides the research results to the applicant, who can respond to it.

40        On June 8, 2011, the complainant was informed that his application was rejected during the screening stage.

41        On June 30, 2011, the complainant submitted a reassessment request.

42        On July 26, 2011, the complainant received a response from a human resource consultant at the IRB about his reassessment request. Among other things, this response advised him as follows that the decision to not screen him in for the written examination was maintained:

[Translation]

The selection committee has re-examined your application, and the decision to not screen you in for the written examination has been maintained.

We acknowledge your work experience as a PRRA officer since November 2010 in relation to the experience “rendering decisions in a quasi-judicial or judicial process”. However, the duration of that experience was only 5 to 6 months, while the selection committee requires a minimum of 12 months in the last 5 years.

I regret that I am unable to provide a more favourable response.

[Emphasis in the original]

43        Since it was the first time that the complainant had heard of the requirement of at least 12 months of experience in the last 5 years, he contacted the human resource consultant that same day by telephone and email. He was then informed of the existence of the reference document and appendix that was given to the screening committees. He requested copies of them. He also requested clarification about his application’s rejection, given his immigration research experience.

44        That same day, the consultant provided him with copies of the documents and replied to him by email that he had not demonstrated that he met one of the four work experiences deemed essential according to the job opportunity notice.

45        By email, the complainant then asked precisely why his experience conducting research in the immigration field did not satisfy the essential qualification of “[translation] conducting research ... in a quasi-judicial, judicial, or immigration environment (including refugee status)”. He did not receive a written response to his request.

Question I: Did the respondent abuse its authority by using assessment tools that according to the complainant were tainted with errors?

46        The complainant alleges that the respondent showed inequity and that it failed its duty of transparency by not informing candidates in the job opportunity notice of the specifications added to the selection criteria included in the reference document and appendix. He affirms that his application was rejected during the screening stage based on those specifications.

47        The complainant also alleges that the screening tools used in the process, i.e., the job opportunity notice, the reference document, and the appendix, were inadequate, irregular, and deficient, which led to unfair results. Specifically, he claims that (1), the job opportunity notice is inadequate because it does not define the minimum years of experience needed to meet the definition of recent experience; (2), the job opportunity notice is inadequate because it does not define the expressions “[translation] quasi-judicial or judicial” and “[translation] research in immigration”; (3), the appendix is inadequate because it states that PRRA officers make quasi-judicial decisions while stating that immigration officers make administrative decisions; and (4), the reference document and appendix are inadequate because they present categories of eligible and ineligible positions or duties, which amounts to a policy that hinders discretionary authority.

48        The complainant points out that in accordance with the jurisprudence, although s. 36 of the PSEA grants deputy heads broad discretionary authority with respect to the choice and use of assessment methods, they must allow for an efficient assessment of qualifications and must be applied fairly and reasonably. The jurisprudence considers that an abuse of authority may occur if the methods used are not related to the qualifications, if they do not allow for assessing qualifications, if a tool is inappropriate, or if the result cannot be considered reasonable or fair (see, for example, Rochon v. Deputy Minister of Fisheries and Oceans, 2011 PSST 7 at para. 72, and Burke v. Deputy Minister of Department of National Defence, 2009 PSST 3 at paras. 56, 63, and 64).

(i) Lack of a definition in the job opportunity notice of the minimum number of years of experience required and of the expressions “quasi-judicial or judicial” and “research in immigration”

49        In Lavigne v. Canada (Justice), 2009 FC 684, the Federal Court ruled on the issue of clarifying essential qualifications after a job opportunity notice is published. In that case, the issue was whether the screening committee abused its authority by rejecting the complainant’s application based on selection criteria that were not published in the job opportunity notice. At paragraph 66 of the decision, the Federal Court concluded that it was within the delegated manager’s discretionary authority to create selection criteria and that the fact that those criteria were not published in the job opportunity notice did not vitiate the process.

50        Under s. 30(2) of the PSEA, managers have considerable discretionary authority to establish the qualifications associated with the positions they are seeking to fill and for choosing the person who not only meets the essential qualifications but also represents the right person for the position in question (see Visca v. Deputy Minister of Justice,2007 PSST 24).

51        Additionally, s. 36 of the PSEA gives the deputy head discretionary authority with respect to the choice and use of tools that he or she feels are appropriate to assess whether candidates have the qualifications established under s. 30(2).

52        The PSLREB is bound by the questions of law that the Federal Court addressed in Lavigne. As in that case, Mr. Pattee clarified the essential qualifications to help the screening committees assess applications. He had all the required flexibility to decide the essential qualifications and, similarly, to define their meaning. The evidence shows that for that reason, the reference document and appendix were created — to clarify the meaning of the essential qualifications.

53        However, the Federal Court decision states that to avoid the appearance of a lack of fairness, definitions must be established before the candidates’ applications are examined.

54        The evidence in this case shows that the reference document and appendix were developed before the applications were examined. Similarly, Mr. Pattee led the training session with those responsible for screening the candidates before the applications were screened. The purpose of that training session was to clarify the meaning of the essential qualifications set out in the job opportunity notice. In that session, the reference document and appendix were handed out. It all took place before the screening committees began screening. Therefore, it is clear that the clarification made to the essential qualifications was developed before the assessors began screening.

55        In this case, Mr. Morin assessed the complainant’s application and rejected it based on the clarification to the reference document and appendix. He concluded that the complainant did not meet any of the essential experience qualifications.

56        At paragraph 70 of Lavigne, the Federal Court defined the role of the former Tribunal and the Court when seized of a complaint or a request for judicial review. That decision mentions that the reviewing body cannot substitute its opinion for that of the delegated manager with respect to the essential qualifications required for a position. It states the following:

The creation of essential qualifications is entrusted to the manager; it is not for the Tribunal or the Court to establish the essential qualifications required for a position or to substitute its assessment of the candidates’ qualifications for that of the manager or his or her sub-delegates, the assessment board in this case. The Tribunal’s role consisted of examining whether there had been abuse of authority in the way in which the assessment board reviewed the applications.

57        Therefore, I have no jurisdiction to decide whether the requirement of 12 months’ experience acquired in the last 5 years was fair. That decision fell on the delegated manager, who felt that it was fair. Mr. Pattee also explained why he judged it necessary that candidates had to have acquired at least 12 months’ experience in the last 5 years. That requirement was set out to ensure that the individuals hired would be able to appropriately carry out their tasks as soon as they began work. Those individuals needed to be familiar with procedural and substantive issues that affect conducting hearings and had to be able to hear cases as soon as they were hired, which is a logical and coherent explanation.

58        In Neil v. Deputy Minister of Environment Canada, 2008 PSST 4 at paras. 50 and 51, the former Tribunal stated that it is preferable that the job opportunity notice be clear and transparent; however, not informing candidates of the definition of a merit criterion does not constitute an abuse of authority. Those paragraphs read as follows:

The Tribunal wishes to emphasize that, while it is not mandatory to inform candidates of complete details of how a particular qualification will be assessed, it is in everyone’s interest to be as clear and transparent as possible in an appointment process. This will ensure that all those who do, in fact, meet a qualification can demonstrate this and proceed to the next step of the process. Therefore, it would have been preferable for the respondent to provide candidates with greater details on the Statement of Merit Criteria concerning how “significant experience” was to be assessed by the board....

...

However, failure to inform candidates of a specific definition related to a merit criterion does not, in and of itself, amount to abuse of authority. The qualification established by the managers and against which candidates would be assessed was set out in the Statement of Merit Criteria. The Tribunal finds that the qualification itself was sufficiently detailed so that candidates knew what they had to demonstrate.

59        Similarly, with respect to the expressions “quasi-judicial or judicial” and “research in immigration”, it was up to the delegated manager to define his understanding of those terms, which he did by way of the reference document and appendix.

60        First, with respect to the expression “[translation] quasi-judicial”, the reference document listed a dozen examples of quasi-judicial or administrative tribunals, which is how Mr. Pattee defined his understanding of that expression. He added that he did not believe that there was any need to further define the expression “quasi-judicial or judicial” in the job opportunity notice, as his opinion was that the expression was well known in the legal field.

61        Then, with respect to the expression “research in immigration”, the reference document stated that conducting research had to be a major part of the duties. Thus, in that document and in the oral instructions he gave in the managers’ training, Mr. Pattee defined his understanding of that expression.

62        In light of that, Mr. Pattee could rightfully clarify the published essential qualifications. It is important to specify that the reference document and appendix shed light only on the nature of the experience sought, which is described in the job opportunity notice that was published. Therefore, I cannot conclude that the job opportunity notice was inadequate because it did not define the minimum number of years of experience needed to meet the definition of recent experience or because it did not define the expressions “quasi-judicial or judicial” or “research in immigration”.

(ii) Clarification in the appendix that PRRA officers’ decisions meet the quasi-judicial criterion

63        The complainant claims that the appendix is inadequate because it states that PRRA officers render quasi-judicial decisions, which he claims is not so.

64        At the hearing, the complainant acknowledged that he stated in his résumé that as a PRRA officer, he holds quasi-judicial hearings as needed before rendering his decisions. However, he stated that he made that statement in his résumé because he had heard that work experience as a PRRA officer was recognized as quasi-judicial in the internal appointment process. However, he insisted that there is no difference between the nature of the work of a PRRA officer and that of an immigration officer. According to him, if the respondent deems that an immigration officer’s work is not quasi-judicial, then it cannot deem that a PRRA officer’s work is quasi-judicial.

65        The complainant brought to my attention an excerpt from his immigration officer work description to support his argument that PRRA officers and immigration officers do the same type of work. That extract confirms that immigration officers have significant authority and reads as follows:

[Translation]

The incumbent has the authority needed to issue orders and directives and to require that a client appear at the investigation, comply with instructions and conditions, and submit to an examination and to decide whether that person is authorized to remain in or be removed from the country, be detained, be refused entry into the country, or be granted or refused citizenship.

66        In short, the complainant argues that PRRA officers do the same type of work and do not make quasi-judicial decisions. Thus, according to him, treating the two groups of employees differently was not justified.

67        An explanation was provided as to why the appendix states that PRRA officers render quasi-judicial decisions while immigration officers do not. According to Mr. Pattee, in some cases, PRRA officers can hold quasi-judicial hearings, at which they can be called on to rule on interlocutory issues, hold pre-hearing conferences, accept evidence, hear arguments, and render decisions. According to Mr. Pattee, at those hearings, PRRA officers have a certain amount of independence based on the attributes of an independent judiciary. Their authority to hold those hearings arises from statutory authority (ss. 96, 97, 112, and 113 of the IRPA and s. 167 of the Regulations). And the legal test that PRRA officers apply under those sections is the same one that IRB members apply. Specifically, the pre-removal risk assessment allows people who are to be removed from Canada to seek protection. Applicants must describe in writing the risks that they may face if they are removed. Individuals whose PRRA applications are approved can remain in Canada.

68        Mr. Morin also affirmed that certain decisions PRRA officers make are quasi-judicial as those officers can hold hearings based on regulatory factors. He also affirmed that those officers, like IRB members, determine who qualifies as a refugee within the meaning of the Geneva Convention relating to the Status of Refugees. However, the PRRA officers’ mandate is to determine if a refugee claimant who is unsuccessful due to an IRB decision has presented new evidence that was not normally accessible at that time. Mr. Morin added that decisions that the IRB and PRRA officers render have a significant effect on human rights as there is a risk of persecution, torture, etc. Therefore, that is why the appendix states that PRRA officers’ decisions are quasi-judicial.

69        As for immigration officers classified PM-03, Mr. Pattee explained that they receive their authority to render decisions from a delegation from the minister of immigration, refugees, and citizenship. Thus, they do not benefit from the independence and neutrality normally associated with decision makers in quasi-judicial bodies.

70        Mr. Pattee also clarified that immigration officers do not render quasi-judicial decisions but instead render administrative decisions, such as on visa applications. For similar reasons, the appendix also states that decisions that border services officers render who are classified FB-03 are administrative, not quasi-judicial or judicial. However, the appendix states that a candidate classified PM-03 can meet the experience criterion of rendering decisions in a quasi-judicial process if “[translation] rendering decisions” in cases in which humanitarian grounds are cited “[translation] constitutes an important part of the candidate’s duties”. In that case, explained Mr. Pattee, the decisions that candidate renders are quasi-judicial, and that person would be considered to have the desired experience and be able to sit as a member. If not, i.e., if it is not an important part of the candidate’s duties, the candidate would not benefit from the experience needed to sit as a member.

71        Mr. Morin also confirmed that the decisions an immigration officer renders are administrative rather than quasi-judicial. He explained that immigration officers grant a privilege, i.e., of coming to or remaining in Canada, and not a right. When questioned further, he explained that he reached that conclusion based on his understanding of decisions rendered by immigration officers and the guidelines set out in the appendix.

72        The complainant pointed out that decision-making authority was delegated from the minister of immigration, refugees, and citizenship to PRRA officers, in the same way decision-making authority is delegated from the minister to immigration officers. Under the circumstances, he affirms that treating the two groups of employees differently was not legitimate.

73        I note that the PRRA officer job description effectively mentions that he or she is a “[translation] representative of the minister when rendering decisions with legal scope in accordance with the [IRPA]”. Similarly, the immigration officer job description states that one of the activities consists of “[translation] formulating the minister’s position on the cases being processed”. I have read those provisions. However, I note that those job descriptions were not available to the delegated manager when he established and defined the essential qualifications for the process. Nonetheless, he deemed that the experience accumulated by a PRRA officer was sufficient and that it met certain essential qualifications because that officer has a specific mandate under the law to hold hearings in certain cases. An immigration officer does not have that type of mandate.

74        Specifically, a PRRA officer’s job description states that he or she must “[translation] determine the relevance of holding a hearing to settle questions about the applicant’s credibility and other complex questions that are essential to decision making”. As mentioned, it was up to the delegated manager to define what he was seeking in terms of the experience needed for a candidate to be able to carry out the duties of a member as soon as he or she began work. He judged that the experience acquired by a PRRA officer was sufficient because such an officer would be able to hold hearings immediately upon beginning work. The PSLREB cannot substitute its judgement for the delegated manager’s.

(a) Refugee system reform

75        The complainant adduced in evidence a series of documents that demonstrate that a reform of the refugee system was underway when the appointment process was taking place. With those documents, the complainant seeks to demonstrate that there was a political will to allow PRRA officers to apply for positions as members because, under the reform, they would lose their jobs. According to him, it shows that PRRA officers do not render quasi-judicial decisions and that therefore the respondent erred by ruling otherwise. The complainant also affirms that that reform shows that priority was given to PRRA officers in the appointment process, while immigration officers were placed at a disadvantage.

76        On that matter, Mr. Morin indicated that as part of his duties, he knew about the work done to facilitate reforming the refugee system. As part of it, the responsibility for pre-removal risk assessments was transferred to the IRB. However, PRRA officers at CIC did not join the IRB, even though some of their responsibilities were to be transferred there. Under the circumstances, it is true that at the time the process was reformed, many PRRA officers were looking for new work.

77        The complainant brought to my attention a record of decisions made during a labour-management meeting on July 28, 2010. That record states that the CIC’s deputy minister, Neil Yeates, mentioned that the CIC would do its best to minimize disruptions and that it was committed to ensuring that employees would be offered opportunities to remain at CIC and take part in the IRB’s appointment process in a fair manner. According to the complainant, that proves that the claim that PRRA officers are qualified because they render quasi-judicial decisions is incorrect. According to him, PRRA officers were accepted in the process because a promise was made to the Canada Employment and Immigration Union that those officers could apply for member positions.

78        In my opinion, the existence of that reform and the report do not constitute proof that the respondent erred by stating in the appendix that PRRA officers make quasi-judicial decisions. As mentioned, there is a reason their experience was deemed satisfactory in the process. It was determined that some of their decisions are quasi-judicial. Finally, the refugee system reform and the documents brought to my attention do not constitute proof that immigration officers were at a disadvantage in the process. According to the evidence presented, they do not have the specific mandate of holding quasi-judicial hearings, which is why their experience was deemed insufficient.

79        For all those reasons, I conclude that even though there was a will to allow PRRA officers to apply for member positions because of the refugee system reform, it does not demonstrate that the respondent erred by stating in the appendix that the officers render quasi-judicial decisions.

(b) Immigration jurisprudence describing the PRRA officers’ role

80        The complainant also pointed out that historically on many occasions, the courts have recognized that PRRA officers are ministerial delegates and that they render administrative decisions. Thus, according to him, the PRRA officers were assessed in this appointment process based on an incorrect legal principle.

81        For example, in Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, the Federal Court stated at paragraph 77 as follows: “... PRRA decisions are made not by an independent administrative tribunal but by officers of Citizenship and Immigration Canada.”

82        Similarly, the following is stated in Singh v. Canada (Citizenship and Immigration), 2014 FC 1022 at para. 50:

A PRRA officer is not a quasi-judicial body, nor does he or she have an appellate function when faced with a RPD decision. The PRRA officer is an employee of the Minister, acting within his or her employer’s discretion (insofar as it is circumscribed by the Act and the Regulations)....

83        The issue in dispute in that decision was whether, overall, the Refugee Appeal Division’s decision was reasonable. It rendered its decision in the context of an appeal of an RPD decision. In its decision, the Refugee Appeal Division applied jurisprudence from the Court on the interpretation of s. 113(a) of the IRPA to interpret another provision of the law. That paragraph deals with the admissibility of new evidence presented to a PRRA officer that was not previously presented to the RPD. In its decision, the Federal Court ruled that a PRRA officer must show deference to an RPD decision as long as the facts have remained unchanged since it was rendered. Instead, the PRRA officer checks whether new evidence has arisen since the RPD rejected the claim to determine whether there is a risk of persecution, torture, or cruel and unusual treatment or punishment or a threat to life. Thus, the Federal Court’s decision specifies that the underlying rationale for s. 113(a) of the IRPA “... is not appellate in nature but rather to assure the claimant has a last chance to have any new risks of refoulement (not previously assessed by the RPD) assessed before removal can take place.” Therefore, the Court confirms that for the purpose of pre-removal risk assessments, a hearing is held only under limited circumstances and that an unsuccessful applicant who requests a PRRA can only present evidence that has arisen since the refugee claim was rejected or that could not have been presented before.

84        So, although the number of hearings PRRA officers hold may be limited, based on the evidence presented, the fact remains that they must have the competency required to hold necessary hearings. Therefore, the delegated manager in this case was fully entitled to deem that individuals with the competencies needed to hold those hearings could carry out a member’s task. Therefore, I conclude that the delegated manager legitimately exercised his discretionary authority and that the allegation that the PRRA officers were assessed in this appointment process based on an incorrect legal principle is unfounded.

85        Finally, I note that the complainant also cited many other cases in support of his allegation. Although I reviewed each case, I chose to cite only those listed earlier, which clearly reflect the jurisprudence on the issue.

(i) Allegation that the reference document and appendix are inadequate because they present categories of eligible and ineligible positions or duties, which amounts to a policy that hinders discretionary authority

86        The complainant alleges that without the assistance of classification professionals and without job descriptions, the delegated manager or his representatives conducted a preliminary assessment of several positions and produced a list of eligible and ineligible positions or duties. He claims that that method violated the principle of individual merit as the result was determined in advance, even before the applications were assessed, which contravened the guiding values of justice, transparency, representativeness, and accessibility. He also claims that those assessment tools were inadequate because they put the selection committees in a strict position from which they could not show openness to certain occupational groups.

87        Mr. Pattee explained that the list of a priori eligible and ineligible positions or duties was prepared to help the screening committees interpret qualifications. The evidence also shows that although the list of certain positions and duties served to clarify the nature of the desired experience, it essentially served to create benchmarks or preliminary indicators for the screening committees.

88        Since a delegated manager is fully entitled to provide clarification about published essential qualifications, my opinion is that in this case, Mr. Pattee was entitled to provide those benchmarks or preliminary indicators to the screening committees. As already stated, the manager creates the essential qualifications, and the PSLREB cannot establish or define them. Therefore, I cannot conclude that those tools were inadequate simply because they listed categories of a priori eligible or ineligible positions or duties.

89        The complainant also alleges that the reference document and appendix were inadequate because they imposed a strict position on the screening committees and that therefore the committees could not show openness to certain occupational groups, including immigration officers. According to the complainant, the screening committees were subject to strict instructions that they could not bypass for reasons of uniformity, due to the large number of candidates. He points out that were it not for those strict instructions, his immigration officer experience could have been recognized as relevant work experience.

90        As the complainant noted, in Bowman v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 12, the former Tribunal noted that abuse of authority can occur when a delegate refuses to exercise his or her discretionary authority by adopting a policy that constrains his or her ability to consider individual cases with an open mind. The following is noted at paragraph 127:

Moreover, in the context of the PSEA, where recourse is now focussed [sic] on the exercise of discretion in appointment processes, an assessment board should not refuse to exercise its discretion through strict [sic] application of a guideline which fetters its ability to assess each candidate with an open mind. Where the Tribunal determines that the assessment board has fettered its discretion in this way, it may find that the assessment board abused its authority.

91        In Bowman, with respect to one of the complainants and in light of the evidence presented, the former Tribunal concluded that the assessment board had introduced and applied rigid temporal criteria to an essential qualification that was crafted to be flexible and to allow for discretion. By doing so, rather than fulfilling its responsibility, the assessment board failed to meaningfully assess that complainant’s experience.

92        Therefore, the issue is whether the screening committee that Mr. Morin set up in this case considered the guidelines in the reference document and appendix mandatory and conclusive, without the need to examine other factors. If so, such a hindrance on the exercise of its discretionary authority would constitute a major error (see, for example, Toussaint v. Canada (Attorney General), 2010 FC 810 at para. 54).

93        Mr. Morin exercised his discretionary authority when he had to determine whether it was appropriate to accept the complainant’s immigration officer and PRRA officer experience. He explained that he carefully examined the complainant’s entire application and that he identified, as applicable, the periods of experience relevant to the advertised criteria. However, he could not come up with a total of 12 months of experience. Mr. Morin also stated that had the complainant clearly shown in his application that a large part of his immigration officer duties consisted, for example, of conducting research into the specific issues listed and gathering information from different governmental and non-governmental sources, newspapers, the Internet, etc. and then analyzing that data and preparing reports, he would have deemed that it satisfied the immigration research criteria. However, the complainant did not provide that information in his cover letter or résumé.

94        Both Mr. Pattee and Mr. Morin also explained that the screening committees were not bound by the reference document and the appendix but that the assessors were to use their judgment, i.e., their discretionary power, to distinguish relevant experience from irrelevant experience.

95        Chrystal Hitchcock, staffing advisor, IRB, provided advice to the delegated manager during the appointment process. She affirmed that the reference document and the appendix were created to enlighten the screening committees when assessing applications. She specified that essentially, those documents contain recommendations, and that the screening committees were at liberty to decide whether an application should be accepted.

96        In light of the above, it was not established that Mr. Morin considered the guidelines mandatory and conclusive, making it unnecessary to review the entire content of the complainant’s job application. Nor was it determined that the guidelines violated the individual merit principle by setting out the results in advance. Instead, the evidence reveals that Mr. Morin reviewed each area of experience that the complainant gained in the different positions he held during his career before concluding that he did not meet the essential qualifications. Thus, none of the adduced evidence demonstrated that Mr. Morin failed to show an open mind when he decided not to retain the complainant’s immigration officer experience.

97        Therefore, I cannot conclude that the reference document and the appendix hindered Mr. Morin’s ability to review the complainant’s job application with an open mind. Likewise, I cannot conclude that the delegated manager exceeded his mandate by adopting a policy that hindered the screening committees’ ability to review individual cases with an open mind. As mentioned, the guidelines, which the delegated manager wrote, were properly enacted under his power to establish essential qualifications under s. 30(2) of the PSEA.

Question II: Did the respondent abuse its authority by concluding that the complainant did not satisfy any of the required essential qualifications, i.e. about recent work experience?

98        The complainant alleges that his assessment was flawed because his immigration officer experience was not considered. He maintains that his immigration officer position was assessed but that he was not assessed on individual merit. He affirmed that when he applied, his 12 years of immigration officer experience included conducting research within the ordinary meaning of the expression “[translation] conducting research in an immigration environment”. As of the hearing, he held an immigration officer position.

99        At the hearing, to demonstrate that he had the research experience in the immigration field, the complainant provided information that was not listed in his job application and therefore that was not considered at the screening stage. He described the research that he conducts as an immigration officer before deciding the eligibility of refugee protection claims, in particular. He specified that security issues are ever-present in that field.

100        The complainant also affirmed that he has worked in almost all the department’s “[translation] business lines” or divisions and that he always conducted a great deal of research before granting temporary residence permits and permanent residence applications, including permanent residence applications on humanitarian grounds. He maintained that in all cases, research must be conducted on the facts before he can apply the law. He also described his three assignments in Canadian embassies outside Canada. Subsequently, he relied on a job description for an IRB member position to demonstrate that some of the tasks described in it are similar to the tasks he performs as an immigration officer.

101        However, as mentioned at the hearing, the PSLREB’s role is not to revisit the appointment process and review the complainant’s experience presented at the hearing to determine if, after a second look, the screening committee should have rendered a different decision. Its role consists of determining whether abuse of authority occurred in the appointment process.

(i) The complainant’s assessment

102        Mr. Morin specified that he carefully read the complainant’s cover letter and résumé before rejecting his application on the grounds that he was unable to find in it a total of 12 months of the sought-after experience. He explained that the complainant’s immigration officer experience was insufficient because in the description of his duties, he did not demonstrate that he made quasi-judicial decisions or that most of his work consisted of conducting in-depth research on complex issues. Under the circumstances, because he did not find a total of 12 months of the sought-after experience, he was obliged to reject the complainant’s application.

Recent experience rendering decisions in a quasi-judicial or judicial process

103        At the hearing, Mr. Morin explained how in his opinion, the experience the complainant described in each paragraph of his cover letter is equivalent to administrative rather than quasi-judicial activities. He did the same with the complainant’s résumé.Roughly speaking, he explained that immigration officers’ decisions to grant permanent or temporary residence applications, to assess refugee claim eligibility, to recommend detentions, etc., are administrative.

104        The complainant also specified in his résumé that he had a few months’ experience in “[translation] making multiple decisions in difficult situations” as part of his assignments to the Canadian embassies in Mexico in 2009 and in Haiti in 2010. Mr. Morin explained that he considered that information along with everything else the complainant submitted in his job application. However, he affirmed that the complainant did not specify the types of decisions he made in those assignments. Thus, Mr. Morin was unable to conclude that they were quasi-judicial.

105        Mr. Morin therefore concluded that the only quasi-judicial decisions that the complainant had made were when he was a PRRA officer.

Recent experience conducting research or investigations in a quasi-judicial, judicial, or immigration environment (including refugee status)

106        In addition, Mr. Morin specified that the complainant’s research experience, when he was a PRRA officer, was relevant. He specified that PRRA officers must conduct research on countries’ situations and assess the risks to which claimants would be exposed if they were to return to their countries. However, the complainant had only four months of that experience.

107        Mr. Morin felt that the complainant’s research experience as an immigration officer, however, was insufficient. In some areas of his job application, the complainant described the type of research that he conducts as an immigration officer. In his résumé, he specified the following: “[translation] Conducting research and analyses of documentary evidence to make recommendations to border services about work permit exemptions”. In his cover letter, he described some of his research under the heading entitled, “[translation] Experience in research or in immigration investigations (ASSET)”. Mr. Morin explained that he carefully read those paragraphs and the complainant’s résumé but that he concluded that nothing demonstrated that the complainant met the criterion of conducting research or investigations in the specified fields.

108        First, as mentioned, one of the statements in the complainant’s résumé was that he conducted “[translation] Research and analyze of documentary evidence to make recommendations to border services about work permit exemptions”. Mr. Morin said that he did not have enough information to understand the extent of the research that had been conducted. In summary, in that statement, he did not find a description of the research that had been conducted, the information that had been collected, the analysis that had been performed, and the type of report that had been produced. Finally, the statement did not demonstrate that that type of research constituted most of the complainant’s work.

109        Next, with respect to research described under the heading, “[translation] Experience in research or in immigration investigations (ASSET)”, Mr. Morin noted that the research conducted “[translation] in partnership with organizations”, for example, the CPIC and the USINS, is essentially conducted using existing databases that those organizations developed. He reiterated that the research had to constitute most of the candidate’s work and that it had to be substantial. Specifically, the candidate had to describe his research, specify its subject (for example, “What are the required conditions to be a member of a political party in Pakistan?”), and demonstrate that he had collected information from different sources (governmental and non-governmental agencies, experts, newspapers, libraries, university professors, the Internet, databases, sites, etc.). The candidate also had to demonstrate that he conducted analyses and prepared research reports. Mr. Morin added that the simple fact of extracting information from a database is not necessarily equivalent to conducting research. According to him, before rendering their decisions, immigration officers use data that are already compiled. Likewise, Mr. Pattee specified that extracting data from existing databases does not by itself constitute substantial research.

110        Mr. Morin also read the information according to which the complainant’s research led to assessing criminal equivalencies under the Canadian Criminal Code. However, he explained that he was unable to determine whether that was substantial research that the complainant conducted or whether that research represented most of his tasks.

111        Likewise, Mr. Morin read the paragraphs under the heading “Citizenship,” which mention that the complainant carried out “[translation] documentary research and factual background reports”. And he judged that those paragraphs did not contain enough information to allow him to conclude that the complainant conducted substantial research and that doing so constituted most of his tasks. In other words, he was unable to understand the scope of the research that had been conducted. The paragraphs refer to reports about crime and violations of the Act or regulations but no descriptions of the research that was conducted, the sources that were consulted, or the reports’ findings.

112        For his part, the complainant pointed out that one of an immigration officer’s activities, according to his job description, is to “[translation] [d]evelop approaches and conduct in-depth research, fact finding, interviews, and investigations”. According to the job description, an immigration officer must also do the following:

                   [Translation]

Know the practices, methods, and techniques associated with interacting and with exchanging information ....

The different scenarios that call on interaction techniques range from brief interactions to major interrogations and investigations about complex details or situations in which information is difficult to obtain.

...

Know the methods, techniques, and principles associated with using electronic and office tools to use them for activities such as research involving databases at the international level and preparing reports, correspondence, and presentation documents.

113        During the hearing, the complainant also specified that he conducted research into jurisprudence and into document authenticity (passports, birth certificates, diplomas, invoices, joint accounts, etc.). He also explained that he had research tools at his disposal to help him.

114        It is important to recognize that immigration officers conduct concrete research as part of their work. However, the screening committee did not have the complainant’s testimony when it reviewed his application. In any case, the screening committee had to assess his qualifications in light of his job application and of the specifications the delegated manager provided. Candidates had to demonstrate that research constituted most of their work and that it was substantial; in light of that information, Mr. Morin assessed the complainant’s research experience. He concluded that his immigration officer experience was insufficient with respect to the specifications stated in the reference document. That was a reasonable assessment of his experience. The PSLREB does not have jurisdiction to decide whether, after a second review, Mr. Morin might have assessed the complainant’s work experience differently. In other words, I cannot substitute my assessment of his experience for the screening committee’s.

115        In his résumé, the complainant also mentions that his work as a PRRA officer consists of the following: “[translation] Assessing and making decisions with respect to applications that include humanitarian considerations, particularly life-threatening risks”. Both parties clarified that one of the IRPA’s fundamental principles states that before arriving in Canada, foreigners who wish to live here permanently must apply outside Canada. With the exception of the cases that the IRPA provides for, foreigners do not have the right to submit a permanent residence application once already in Canada. The complainant specified that in applications involving humanitarian considerations, the CIC decision maker must determine whether humanitarian considerations justify granting the requested exemption. The criterion of “[translation] unusual and undeserved or disproportionate hardship” is then applied.

116        It should be noted that Mr. Morin assessed that experience of the complainant with respect to the specifications listed in the appendix about humanitarian grounds. However, the complainant had been performing those duties for only four months when the assessment was done. Therefore, Mr. Morin was unable to conclude that the complainant had 12 months’ experience granting exemptions for humanitarian considerations.

117        The former Tribunal has confirmed, on several occasions, that candidates must clearly demonstrate in their job applications that they have all essential qualifications (see, for example, Wilson v. Deputy Minister of Health Canada, 2012 PSST 27). In this case, the evidence reveals that in his job application, the complainant did not clearly demonstrate that he had all essential qualifications.

118        For all those reasons, I believe that it was not demonstrated that the respondent abused its authority by concluding that the complainant did not meet the required essential qualification of recent work experience.

(ii) Different qualifications in the context of another process

119        The complainant argues that the essential qualifications in this process are based on the core competencies of the old procedure for appointing members by decree, for which he prequalified on July 24, 2009. However, his application was rejected at another stage of the process. Drawing on a document entitled, “[translation] Competency profile for persons appointed by IRB decree”, he pointed out that one of the required competencies in that appointment process was conducting investigations and information searches. Likewise, the quality statement for that process specified that the sought-after experience consisted of the following: “[translation] A minimum of five years’ experience as a decision maker in an administrative tribunal and/or in interpreting or applying legislation [including the IRPA] ...”. The complainant maintains that since his experience interpreting and applying the IRPA was deemed sufficient to pass the screening stage, the respondent erred in this process by rejecting his application at the screening stage.

120        In Lavigne, in addition to noting that the delegated manager must establish the essential qualifications of a position to be staffed, the Federal Court also noted the following at paragraph 74:

Managers have good reasons to fill the vacant positions with the persons who are competent to meet the specific requirements of the duties of employment. Managers are not required to use similar essential qualifications for positions at the same level; they are merely required to establish the qualifications for the work to be performed....

[Emphasis in the original]

121        In this case, the delegated manager was not required to use criteria identical to those used in the old procedure for appointing members by decree. The delegated manager’s task was to define the required qualities that he needed. Thus, Mr. Pattee could establish the requirements of the position in question, and he was not required to use the criteria in the old procedure.

122        In addition, the former Tribunal addressed a similar issue in Richard v. Deputy Minister of Canadian Heritage,2009 PSST 12, and arrived at the following conclusion, at paragraph 70: “In summary, the fact that the complainant may have been screened in to these other appointment processes does not provide any useful information in determining the present case.” Similarly in this case, the fact that the complainant’s application was retained at the screening stage for another appointment process is not a determining factor.

123        Finally, the complainant explained that he disagreed with the rejection of his application in another processes, conducted in 2010 (2010—IRB-IA-017619), because he did not meet the essential qualifications. However, he did not file any complaint under s. 77 of the PSEA after his application was rejected in that process. Therefore, the PSLREB does not have jurisdiction to deal with that process, and he was unable to establish any link whatsoever between that process and the one in this case.

(iii) Providing sufficient reasons

124        The complainant alleges that the respondent committed an injustice or an abuse of authority by failing to provide full reasons for its decision to reject his application at the screening stage. He argues that the authority to make decisions is accompanied by the responsibility to make them fairly and transparently. In support of his argument, he refers to the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.

125        In this case, three emails were exchanged about the screening committee’s decision (also referred to in this case as the selection committee) to reject the complainant’s application. First, on June 8, 2011, the respondent informed the complainant that his application was rejected at the screening stage. The respondent also mentioned that he did not meet one of the four merit criteria. The respondent informed the complainant, as well, that he could request an informal discussion to learn more about his elimination from the process. Then, on June 30, 2011, the complainant asked the respondent to reconsider its decision to eliminate him from the process. Finally, on July 26, 2011, the respondent replied to the complainant that the selection committee had reviewed his application again and that the decision was maintained to reject his application. The reason cited for the elimination was that he did not have experience making decisions in a quasi-judicial process.

126        As seen, the sheet Mr. Morin filled out at the screening stage indicated that the complainant had satisfied the education qualification but not the one about relevant experience. Next to the criterion, “[translation] Recent experience rendering decisions in a quasi-judicial or judicial process”, Mr. Morin wrote the following by hand: “[translation] None. PRRA officer since November 2010. Not enough ‘recent’ experience”. Likewise, next to the other selection criteria, he wrote: “[translation] None”.

127        In addition, on his résumé, next to the complainant’s description of his immigration officer duties, Mr. Morin wrote the following by hand: “[translation] No PRRA (pre-removal risk assessment) work was demonstrated during that period”.

128        According to the complainant, Canadian courts, in accordance with Dunsmuir v. New Brunswick, 2008 SCC 9, have regularly dismissed such decisions on the grounds that they are unreasonable because they lack transparency, justification, and intelligibility and because they do not have acceptable outcomes with respect to facts and law.

129        As the Supreme Court of Canada decreed at paragraph 40 of Baker,several types of written explanations can fulfil the duty to give reasons for a decision. In fact, it noted the following:

Others have expressed concerns about the desirability of a written reasons requirement at common law. In Osmond, supra, Gibbs C.J. articulated, at p. 668, the concern that a reasons requirement may lead to an inappropriate burden being imposed on administrative decision-makers, that it may lead to increased cost and delay, and that it “might in some cases induce a lack of candour on the part of the administrative officers concerned”. Macdonald and Lametti, supra, though they agree that fairness should require the provision of reasons in certain circumstances, caution against a requirement of “archival” reasons associated with court judgments, and note that the special nature of agency decision-making in different contexts should be considered in evaluating reasons requirements. In my view, however, these concerns can be accommodated by ensuring that any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient.

[Sic throughout]

[Emphasis added]

130        At paragraph 44 of Baker,the Supreme Court of Canada added that “... individuals are entitled to fair procedures and open decision-making [sic], but ... in the administrative context, this transparency may take place in various ways.”

131        In Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval,2016 SCC 8 at para. 46, the Supreme Court of Canada also expressed that the decision’s nature will determine the relevance of the motives of the body making it.

132        My opinion is that communicating the emails dated June 8 and July 26, 2011, to the complainant and the screening sheet that Mr. Morin annotated constitutes sufficient motive for the decision that was made. In my opinion, communicating them to the complainant meets the desired transparency criterion.

133        In brief, I believe that communicating those emails and the annotated sheet fulfilled the duty to provide reasons under the principle of procedural fairness. The annotated sheet contains a more specific explanation of the reasons for rejecting the complainant’s application, and it was given to the complainant at the information disclosure stage before the hearing.

134        Finally, in an internal appointment process, my opinion is that a letter or an email notifying the candidate that he or she did not meet a particular merit criterion is sufficient. However, it does not prevent an assessment committee from providing more information to a candidate about his or her elimination from the internal appointment process. A candidate also always has the option of requesting an informal discussion, if desired, to learn more about the reason for being eliminated from the process.

Question III: Did the respondent abuse its authority by refusing to readmit the complainant to the appointment process following the informal discussion?

135        When the complainant was informed that his application was rejected at the screening stage, he requested a reassessment of it. He maintains that he did not receive a true reassessment as part of the informal discussion.

136        On July 26, 2011, he received a written response to his reassessment request from a human resources consultant. That same day, he also had a discussion with that representative.

137        Ms. Hitchcock, who provided advice to the delegated manager, was unaware of the complainant’s request. However, she confirmed that some candidates who requested reassessments of their applications through an informal discussion were readmitted to the process.

138        Thus, the complainant alleges that he was not treated consistently and fairly as part of his reassessment request. According to him, had the respondent been open and available for the purposes of the informal discussion, it could have reassessed his application by becoming acquainted with the delegation instrument applicable to immigration officers and with their job description and therefore could have better understood an immigration officer’s role.

139        Section 47 of the PSEA states that a candidate may request an informal discussion when his or her application has not been retained in an internal appointment process, as follows:

Where a person is informed by the Commission, at any stage of an internal appointment process, that the person has been eliminated from consideration for appointment, the Commission may, at that person’s request, informally discuss its decision with that person.

140        In Rozka v. Deputy Minister of Citizenship and Immigration Canada,2007 PSST 46 at para. 76, the former Tribunal described what an informal discussion consists of as follows:

Informal discussion is intended primarily to be a means of communication for a candidate to discuss the reasons for elimination from a process. If it is discovered that an error has been made, for example, if the assessment board did not consider some information listed on a candidate’s application, this provides the opportunity for the manager to correct that mistake. However, Informal [sic] discussion is not an opportunity to request that the assessment board reassess a candidate’s qualifications.

141        In this case, I conclude that as part of the informal discussion, the delegated manager’s representative disclosed to the complainant one of the reasons for which his application was not retained at the screening stage. The complainant was informed that his experience in quasi-judicial decision making as a PRRA officer from November 2010 to February 2011 was relevant but that its duration did not meet the minimum of 12 months’ experience acquired in the last 5 years. The complainant then tried to understand why his immigration officer research experience was not considered relevant. However, he did not receive a response aside from an email informing him that he did not demonstrate that he met “[translation] one of the four work experiences deemed essential on the competition notice”.

142        It is unfortunate that the respondent did not provide the complainant with more information during the informal discussion about why his immigration research experience was considered insufficient. However, I deem that communicating the reference document and the appendix to him during the discussion provided him with some clarification. The reference document specified that conducting research had to constitute a significant part of the candidate’s duties.

143        In summary, the respondent could have demonstrated greater clarity by informing the complainant as to why his immigration research experience was deemed insufficient. However, in my opinion, the fact that it did not tell him all the reasons that his immigration officer experience was not accepted does not constitute abuse of authority. In Tibbs, at para. 65, the former Tribunal indicated that it is clear from the preamble and from the PSEA in its entirety that the legislator’s intent was that more than mere errors or omissions are required to constitute an abuse of authority.

144        Finally, the complainant wanted the respondent to reassess him as part of the informal discussion after considering the delegation instrument applicable to immigration officers and their job description.

145        However, the respondent was not required to consider the new information that the complainant wanted to bring to its attention. The instructions given to the candidates were clear. They had to demonstrate in their applications that they had the required qualifications. The respondent was required to assess them based on the information in the job applications, not on additional information.

146        In the circumstances, I conclude that it was reasonable for the respondent to refuse to readmit the complainant to the process. According to the respondent, no errors were committed during his assessment; therefore, there was nothing to correct. The fact that the complainant does not agree with his application’s assessment does not mean that an abuse of authority necessarily occurred.

Conclusion

147        For all those reasons, I conclude that it was not demonstrated that the respondent abused its authority by creating and using the assessment tools in question. Nor was it demonstrated that the respondent abused its authority by assessing the complainant’s application or by refusing to readmit him to the process.

Reasons

148        For all of the above reasons, the Board makes the following order:

Order

149        The complaint is dismissed.

July 15, 2016.