FPSLREB Decisions

Heard at Ottawa, Ontario,
February 9, 10, 12, and 16, 2015.

REASONS FOR DECISION

I. Introduction

1        Edith Baragar (“the complainant”) was a candidate in two internal advertised appointment processes at the Immigration and Refugee Board (IRB). The first appointment process 11-IRB-IA-00-17942 (“Process 1”) was for PM-06, member, Refugee Protection Division (RPD), positions and AS-08, coordinating member, RPD, positions. The complainant applied for a PM-06 position. The second appointment process, 11-IRB-IA-00-018467 (“Process 2”), was only for PM-06, member, RPD, positions.

2        The complainant was eliminated from both processes. She alleges that the respondent, the Chairperson of the IRB, abused its authority in these processes in several ways. The respondent denies the allegations and asserts that there was no abuse of authority in these appointment processes.

3        The Public Service Commission (PSC) did not participate in the hearing, but it provided written submissions describing its relevant appointment policies and guidelines. It did not take a position on the merits of the complaints.

4        The complainant filed one complaint related to each process with the former Public Service Staffing Tribunal (“the Tribunal”) in November 2012. The Tribunal consolidated the files for the purposes of the hearing, given their similarities.

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) came into force and created the Public Service Labour Relations and Employment Board (“the Board”). The Board replaced the Tribunal and the Public Service Labour Relations Board and became responsible for handling complaints filed under the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13; PSEA), including any then pending Tribunal proceedings. Consequently, in February 2015, a panel of the Board heard these complaints.

6        For the following reasons, the Board finds that the complaints are not substantiated. The complainant has not demonstrated that the respondent abused its authority with respect to these appointment processes.

II. Background

7        Members of the RPD were previously appointed by the Governor in Council. As a result of legislative reform, these Governor in Council appointees (“GICs”) were to be replaced by PM-06 members appointed under the PSEA.

8        In preparation for the reform, Process 1 was advertised in February 2011 for positions in four cities across Canada. The assessment strategy consisted of five stages: screening applications, administering a multiple-choice knowledge exam, holding a written exam, conducting interviews, and verifying references.

9        The complainant applied to Process 1. She met the screening requirements and passed the multiple-choice and written exams. On November 22, 2011, she was notified that she had been eliminated from this process since she had failed to meet some of the essential qualifications assessed during the interview.

10        Based on an analysis of the preliminary assessment results in Process 1, the respondent determined that there would not be enough qualified candidates to fill all the positions. In November 2011, a second internal process, Process 2, was advertised. The assessment strategy was the same as the one for Process 1.

11        The complainant applied to Process 2. She was not required to repeat the multiple-choice or written exam. Her assessment began at the interview stage of the process. On August 13, 2012, she was notified that she had been eliminated from this process because she did not obtain the pass mark for the essential qualification of the ability to control a hearing.

12        NAPAs for both processes were issued on October 22, 2012.

13        The complainant filed one complaint of abuse of authority, under s. 77(1)(a) of the PSEA, concerning each of the two appointment processes.

14        As already noted, the two complaints were consolidated for the purpose of a hearing.

III. Issues

15        The Board must determine the following issues:

(i) Did the respondent abuse its authority in Process 2 by refusing to assess the example the complainant provided for assessment of the ability to control a hearing?

(ii) Did the respondent abuse its authority in Process 2 by failing to provide information and correct errors as a result of the informal discussion?

(iii) Did the respondent abuse its authority by showing preference for GICs in these appointment processes?

(iv) Were the appointments made by someone without delegated authority?

IV. Analysis

16        Section 77 of the PSEA provides that an unsuccessful candidate in the area of selection for an internal advertised appointment process may file a complaint with the Board that he or she was not appointed or proposed for appointment because of an abuse of authority. As held by the Tribunal, the seriousness and nature of any errors or omissions, and the degree to which any conduct is improper, may determine whether an abuse of authority occurred.

17        The complainant bears the burden of proof, which requires her to present sufficient evidence for the Board to determine that, on a balance of probabilities, a finding of abuse of authority is warranted. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 49, 50, 55, 65, and 66.

Issue I: Did the respondent abuse its authority in Process 2 by refusing to assess the example the complainant provided for assessment of the ability to control a hearing?

18        At the hearing, the complainant confirmed that she was not contesting that in Process 1 she failed the question to assess the ability to control a hearing. She further stated that her allegations related to Process 1 concern only the inclusion of GICs in the process and the matter of subdelegated authority. This issue is therefore related only to the assessment in Process 2 of her ability to control a hearing.

19        In Process 2, the ability to control a hearing was assessed by two interview questions, namely, questions 3 and 4. The complainant is not disputing her assessment with respect to question 4. Question 3 required candidates to “... provide us with an example of a situation where you acted as a mediator between two (or more) individuals who had opposing views.” The complainant submits that question 3 did not specify the type of example the assessment board expected and that it refused to assess the example she gave.

20        The Board finds that although question 3 does not require a specific type of example, it is not vague or misleading. The complainant testified that she received the structured interview questions in writing before her interview on July 10, 2012. In that document, candidates were informed that question 3 would be used to assess their ability to control a hearing. The following statement provided candidates with information about how the assessment board would assess the qualification:“One of the main aspects associated with being able to effectively control a hearing is the ability to control the environment in which the hearing is taking place as well as being able to control the emotions and behaviours of the participants.”

21        In addition, question 3 included the following subsidiary questions:

· What was the situation?

· What were the opposing views?

· What was your approach to resolving this conflict?

· What was the outcome?

· In general, please describe the techniques you usually employ to resolve conflicts between individuals who are having a dispute.

22        The Board finds nothing improper about interview question 3, which allowed candidates to choose any example of mediation that they had done, while also providing sufficient instructions and information about what would be assessed and, therefore, what to address in their examples.

23        In the Board’s view, the assessment board did not refuse to assess the complainant’s example. In her interview summary sheet, the assessment board wrote that her example was “impossible to assess”. Nevertheless, one of her assessors, Marena McLaughlin, testified that the three-member interview panel found unanimously that the complainant did not provide an example of mediation and did not address the techniques employed to resolve conflicts. The panel agreed that the complainant’s response to question 3 merited a mark of 1 out of 5, the lowest possible score. The Board is satisfied that in arriving at these conclusions, the assessment board members did in fact assess the complainant’s example.

24        The complainant submits that the assessment board erred in determining that her example did not describe the mediation of a conflict between two people. At the hearing, she testified about the role and responsibilities of the position she held in her example, stating that she regularly negotiated and mediated between people with opposing views.

25        Under s. 36 of the PSEA, the PSC or its delegate has broad discretion to choose assessment methods to determine whether a candidate meets the qualifications that have been established for a position.The Tribunal has held that it is the candidate’s responsibility to demonstrate his or her qualifications through the chosen assessment process; see, for example, Charter v. Deputy Minister of National Defence, 2007 PSST 48 at para. 37.

26        Ms. McLaughlin testified that when assessing a candidate, the assessment board relied only on what the candidate provided during the interview. Accordingly, the time for the complainant to inform the board and demonstrate her qualifications was during her interview. The best evidence of what she presented in response to question 3 is the assessment board members’ notes.

27        In this case, all three assessment board members’ notes are consistent. According to those notes, the complainant chose an example in which she dealt with a person who arrived in Canada with a valid visa, but there was a note in the “system” that it was cancelled. The complainant’s supervisor told her to quickly conduct a review to determine whether the visa had been properly cancelled and if the person should be sent home. The complainant read a report outlining the reasons for the cancellation and questioned its author, discussed the issues with the person seeking entry, spoke with other people in her workplace, and consulted an immigration manual and the governing policy. She then wrote a report stating that the visa had not been properly cancelled and that the person was entitled to a hearing. During her interview, she characterized these actions as those of a mediator.

28        The complainant argues that she presented a clear example of two opposing views — one person wanted entry into Canada, and the other, an “officer”, wanted to refuse that entry. According to all three assessment board members’ interview notes, the complainant stated that the conflict in her example was between the person seeking entry and the complainant’s supervisor, who wanted the matter dealt with expeditiously.

29        In her testimony, Ms. McLaughlin explained that mediation is a process to help parties that are in conflict find a solution or a compromise satisfactory to both. She testified that the assessment board did not see a conflict between the person seeking entry and the complainant’s supervisor, who was simply doing his or her job. The board’s unanimous decision was that the complainant did not provide an example of mediation, but rather, she described a review of a decision to determine whether it was correct.

30        Ms. McLaughlin also stated that a mediator should be impartial and have no preconception of what the outcome should be. The assessment board members’ interview notes show that the complainant referred to the person seeking entry as her “client” and that she said she represented her client’s interests.

31        The evidence does not support a finding that the assessment board improperly concluded that the complainant’s example was unresponsive to the question that was asked. The question clearly required an example of mediation and Ms. McLaughlin described the basic elements of mediation that the assessment board was looking for. She also explained why the complainant’s example failed to address those basic elements. Her testimony was consistent with the board members’ notes which indicate that the complainant was not neutral and did not help the parties arrive at a solution or compromise but rather that she decided that the visa had not been properly cancelled.

32        The Board concludes that there is no basis for a finding that the respondent refused to assess the complainant’s example or that it abused its authority when conducting the assessment.

Issue II: Did the respondent abuse its authority in Process 2 by failing to provide information and correct errors as a result of the informal discussion? 

33        Section 47 of the PSEA provides for informal discussions so that unsuccessful candidates may learn why they were eliminated from consideration for appointment.

34        When the complainant was notified that she had been eliminated from further consideration in Process 2, she requested an informal discussion. Ms. McLaughlin had one with her on September 13, 2012. Since the discussion took place by telephone, the complainant did not see the assessment documents, and she requested copies of the assessment board members’ notes as well as an opportunity to submit a rebuttal. On the same day, Ms. McLaughlin forwarded the complainant’s requests to Chrystal Hitchcock, human resources advisor. Ms. Hitchcock acknowledges that no documents were provided to the complainant until after she filed her complaints in November 2012, when the exchange of information between the complainant and the respondent took place as part of the complaint process.

35        As the Tribunal held in Carnegie v. Deputy Minister of Citizenship and Immigration Canada,2009 PSST 6 at para. 104, although informal discussion is part of the appointment process, it is not part of the assessment. If an informal discussion reveals that an error has been made in an assessment, the mistake can be corrected. See Rozka v. Deputy Minister of Citizenship and Immigration Canada, 2007 PSST 46 at para. 76.

36        The complainant did not receive the assessment documents when she requested them, and before the hearing, she had no opportunity to rebut the assessment board’s decision. In the Board’s view the respondent missed an opportunity for more informed communication with the complainant about her result. However, the outcome of this complaint does not turn on that failure. The complainant exercised her right to file a complaint and present her case before the Board. The Board has found that the evidence presented at the hearing does not demonstrate that an error was made in the assessment of her response to interview question 3.

Issue III: Did the respondent abuse its authority by showing preference for GICs in these appointment processes?

37        The complainant initially alleged that these processes were tainted by political influence. However, s. 77(3) of the PSEA stipulates that the Board cannot consider an allegation that an appointment or proposed appointment was not free from political influence. The complainant submits that the respondent had a history of giving preferential treatment to GICs and that it was improper to include GICs as candidates in these internal appointment processes.

38        To establish that the IRB had a history of showing GICs preferential treatment, the complainant introduced a PSC report, dated October 2009, of an audit it had conducted at the IRB. She sought to have the Board consider the entire audit report; however, the Board found that only those parts of the report that addressed appointments under the PSEA of former GICs were relevant to these complaints.

39        The 2009 audit covered January 1, 2006, to June 30, 2009, and the report clearly shows that the PSC identified the preferential treatment of former GICs in several appointments under the PSEA that were made during that time. The PSC found instances of appointments in which merit was not met or the file documentation was insufficient to demonstrate that merit had been met. It also found cases in which the guiding values were not met or demonstrated. In some non-advertised appointment processes, the rationales did not reflect the actual circumstances or did not address the guiding values. And in the case of one advertised process, the PSC found that the required experience could have been obtained only as a former GIC of the IRB.

40        As a result of the 2009 audit, the PSC continued to audit appointments made by the IRB for one year, from July 2009 to June 2010. The PSC also conducted investigations into the appointment processes that were found problematic in the 2009 audit.

41        According to the report on the follow-up to the 2009 audit, no appointments of former GICs were made during the additional 2009-2010 audit period. That report also shows that the IRB challenged the PSC’s investigation procedures and, consequently, disagreed with the PSC’s investigative findings and with the proposed, ordered, or recommended corrective actions in many cases. The disputed investigations would have involved files in which former GICs had been appointed under the PSEA.

42        The complainant has shown that between January 2006 and June 2009, there were instances in which the PSC found that the IRB gave preferential treatment to former GICs; however, she did not lead any evidence to establish that preferential treatment occurred when these two appointment processes were conducted in 2011. She tendered lists that identified 10 former IRB GICs; however, only one of them was named among the 20 appointees in the two NAPAs relevant to these complaints.

43        With respect to the inclusion of GICs in these two appointment processes, there is no dispute that GICs were considered to be in the areas of selection for both of them. In Umar-Khitab v. Deputy Head of Service Canada,2007 PSST 5, the Tribunal held that it is not its role to assess whether the area of selection in an appointment process is reasonable or meets the criteria and considerations in the PSC’s “Area of Selection Policy” and “Guidelines”. The authority to determine the area of selection is found in s. 34 of the PSEA. Section 77 of the PSEA, which provides for recourse to the Board for appointment processes, does not refer to s. 34. In accordance with s. 88(2) of the PSEA, the Board’s mandate is to consider and dispose of complaints made under ss. 65(1), 74, 77, and 83. None of these sections allows complaints about an area of selection.

44        Nevertheless, in Kilbray v. Attorney General of Canada, 2009 FC 390, the Federal Court reviewed a Tribunal decision in which the complainant had made allegations concerning the classification of a position. The Court held that although it is not the Tribunal’s mandate to determine whether classification has been properly conducted, it must consider evidence that is relevant to the complaint made under s. 77 of the PSEA. In this case, the complainant argues that internal appointment processes should be open only to employees and that the inclusion of GICs in the processes at issue supports her allegation that they were given preferential treatment.

45        These two internal appointment processes were open to “persons employed” in the public service of Canada. The respondent presented the PSC’s Reference List of Organizations’ Statutory Links with the PSC and the PSEA (“the Reference List”). Ms. Hitchcock explained that this document is linked to the PSC’s Area of Selection Policy. The Reference List provides a definition of “person employed”, which includes GICs appointed to organizations listed in Schedules I, IV, and V to the Financial Administration Act (R.S.C., 1985, c. F-11; FAA). The IRB is in Schedule IV to the FAA.

46        The complainant argues that only employees within the meaning of the PSEA should be eligible for internal appointment processes. She acknowledges that the PSC accepts GICs as being persons employed; nevertheless, in her view, GICs should be allowed to apply only to external appointment processes. She submits that the PSC’s policy on this matter is inconsistent with the PSEA.

47        The Board finds that the complainant has failed to show any inconsistency between the PSEA and the PSC’s policy as it relates to GICs’ eligibility to apply to internal appointment processes. Section 2(1) of the PSEA provides the following relevant definitions:

employee means a person employed in that part of the public service to which the Commission has exclusive authority to make appointments ...

...

public service means the several positions in or under

(a) the departments named in Schedule I to the Financial Administration Act;

(b) the organizations named in Schedule IV to that Act; and

(c) the separate agencies named in Schedule V to that Act....

48        The PSEA does not define “person employed”; however, it is clear from the first definition that not all persons employed are employees, since “persons employed” encompasses persons in parts of the public service other than those where the PSC has exclusive authority to make appointments. Furthermore, the definition of “internal appointment process” in s. 2(1) of the PSEA stipulates that only persons employed in the public service may be considered. Parliament authorized the PSC and its delegates to restrict access to internal appointment processes in accordance with the area of selection provisions in s. 34 of the PSEA. However, absent any restrictions established in accordance with s. 34, Parliament clearly provided access to internal appointment processes to all persons employed in the public service, not just employees.

49        The Board cannot agree with the complainant’s submission that recourse is provided for internal appointment processes as part of the duty of fairness that is owed only to those who are already employees. Section 77 of the PSEA provides that “a person”, not an employee, may make a complaint to the Board.

50        The mere inclusion of GICs in these processes does not support a finding that the respondent gave them preferential treatment, and despite the history revealed in the 2009 audit, the complainant has not demonstrated that preferential treatment occurred in these two appointment processes.

Issue IV: Were the appointments made by someone without delegated authority?

51        Ross Pattee, RPD deputy chairperson, made the appointments from these two processes. The complainant argues that Mr. Pattee was not delegated to make appointments at the relevant time, based on her interpretation of provisions in both the PSEA and the Immigration and Refugee Protection Act (S.C. 2001, c. 27; IRPA), as it then read, as well as on her submission that Mr. Pattee’s subdelegation had expired when he made these appointments.

52        In the Board’s view, the authorities under s. 159 of the IRPA to supervise and direct the work of the IRB’s staff and the authority to appoint experts or persons having special knowledge do not govern these appointment processes. Accordingly, the fact that those authorities can be delegated only by the IRB chairperson to the IRB executive director is not relevant to these complaints.

53        The provisions of the IRPA relevant to these complaints are found in s. 153(1)(a), which states that RPD members are appointed by the Governor in Council, and s. 153(1.1), which provided at the time that an RPD member may be appointed in accordance with the PSEA rather than under s. 153(1)(a) of the IRPA. Section 153(1.1) has since been repealed and replaced by s. 169.1(2), which provides that all RPD members are now appointed in accordance with the PSEA.

54        The complainant referred to s. 29 of the PSEA, which gives the PSC the exclusive authority to make appointments if there is no authority for those appointments under any other Act. At the time of these appointments RPD members could be appointed under the IRPA or the PSEA,and therefore, the PSC did not have the exclusive authority to make such appointments. The appointments at issue fell within the powers of the PSC nonetheless since they were made under the PSEA, in accordance with the explicit authority provided under s. 153(1.1) of the IRPA. The exercise of this power is consistent with the broad mandate of the PSC, set out in s. 11(a) of the PSEA, to appoint, or provide for the appointment of, persons to or from within the public service in accordance with the PSEA.

55        The PSC and the IRB’s chairperson signed an “Appointment Delegation and Accountability Instrument” (ADAI) in December 2007. Under it, the Chairperson could subdelegate his appointment authorities. Of relevance to these complaints, the Chairperson could subdelegate the authority for appointments to associate deputy ministers or other associate deputy heads, employees within the IRB, and GICs in the IRB with both financial and human resources responsibilities. The ADAI specified that subdelegation to GICs was to be limited to the periods of their appointments. In a letter dated June 16, 2010, the Chairperson gave Mr. Pattee the subdelegated authority to make appointments for all occupational groups and levels within his area of responsibility. At that time, Mr. Pattee was RPD assistant deputy chairperson and a GIC.

56        The complainant argues that when Mr. Pattee was appointed under the PSEA on April 4, 2011, to the EX-04 position of deputy chairperson, RPD, his Governor-in-Council appointment ended, and accordingly, his subdelegated authority for appointments also ended. The appointments from these processes were made in October 2012.

57        Mr. Pattee’s June 10, 2010, letter states that his subdelegated authorities would last “... for as long as [he would] occupy a position at the Immigration and Refugee Board of Canada (IRB) for which sub-delegated [sic] appointment authority may be exercised.” Even if this statement is construed as being inconsistent with the specification in the ADAI that subdelegation to GICs is limited to the periods of their appointments, other evidence before the Board demonstrates that the IRB did not contravene the PSC’s directions with respect to Mr. Pattee’s subdelegation.

58        The PSC’s “Delegation Policy” stipulates that the ADAI is signed by the deputy head; however, it is silent on whether a subdelegated person must receive a subdelegation letter. The ADAI states that the IRB’s chairperson is “encouraged to sub-delegate [sic], in writing”, and section II of the PSC’s “Guide to the Sub-delegation [sic] of Appointment and Appointment-related Authorities” (“the Guide”) states that deputy heads “... must sub-delegate [sic] in writing, either by e-mail [sic], regular mail, or by posting a message on the organization’s intranet site.” Subsequent references to an official record of subdelegation in the Guide are to an instrument of subdelegation. Deputy heads must specify who is authorized to exercise appointment and appointment-related authorities in the instrument of subdelegation by name, job title, or management level. The IRB’s “Delegation Instrument” identifies those with subdelegation by job title.

59        The Delegation Policy stipulates that an ADAI is valid for the period the deputy head occupies the position, after which a new ADAI must be signed by the new deputy head. However, the Guide demonstrates that while the PSC imposes conditions on obtaining and recording subdelegated authorities, it does not impose undue administrative burdens that would arise when a person with subdelegated authorities changes positions. Section VI of the Guide states that there is no requirement for new deputy heads to issue a new subdelegation instrument. Section IV states that identifying employees for subdelegation by management level or job title, as is so in this case, enables a deputy head to “... automatically sub-delegate [sic] appointment and appointment-related authorities to incumbents of these positions.” And Section VIII of the Guide notes that if an organization posts the instrument of subdelegation on its intranet, those who are subdelegated should be reminded periodically, since “... new employees are hired or promoted to positions where they would normally exercise sub-delegated [sic] authorities.”

60        The evidence shows that in accordance with the ADAI that the then IRB chairperson, Brian Goodman, signed with the PSC in December 2007, he chose to give Mr. Pattee a letter of subdelegation in 2010, although he was not specifically required to do so. Mr. Goodman was still the chairperson and the ADAI was still valid when Mr. Pattee was appointed to the position of RPD deputy chairperson in April 2011. According to the IRB’s Delegation Instrument, the deputy chairperson position has subdelegated authority for appointments, including appointments to PM-06 positions resulting from an internal advertised process. Mr. Goodman announced Mr. Pattee’s appointment on the IRB’s intranet, including his new “... leadership role in the staffing of member manager and member positions ...”. In the Board’s view, Mr. Goodman was effectively automatically subdelegating Mr. Pattee in his new position, as provided for in the Guide.

61        There is evidence that a new chairperson was appointed at the IRB between April 2011 and October 2012 when these appointments were made. However, there was no requirement to renew Mr. Pattee’s subdelegated authorities, and there is no evidence that any changes were made to his subdelegation.

62        The Board finds that Mr. Pattee was subdelegated to make appointments under the PSEA from these two processes.

V. Other delegation issues

63        The complainant submits that Human Resources improperly usurped the delegated manager’s authority by predetermining the criteria that would be used to select candidates for appointment from among those who were qualified (the selection criteria). In support of her submission, the complainant provided a document announcing the selection strategy for Process 2, which states that appointment decisions “... will be made on the basis of asset experience qualifications” and that the marks obtained during the assessment “... will not be used for the selection of candidates [emphasis in the original].”

64        The Board finds no evidence of wrongdoing. The selection strategy document is not dated and therefore does not establish when the strategy was decided. In any case, the complainant did not establish that there is a proper time to decide what the selection criteria will be. Her document also does not indicate who decided on the selection strategy. Furthermore, it is well established that basing appointment decisions on marks, in other words, relative merit, is not required under the PSEA; see Visca v. Deputy Minister of Justice, 2006 PSST 16 at para. 27.

65        The asset experience qualifications that were identified in the selection strategy were listed on the Statement of Merit Criteria for Process 2. The Tribunal has previously determined that a delegated manager may use any combination of essential and asset qualifications to decide whom to appoint. See Marcil v. Deputy Minister of Transport, Infrastructure and Communities, 2011 PSST 31 at para. 48, and Stamp v. Commissioner of the Correctional Service of Canada, 2014 PSST 4.

66        The complainant also submits that in addition to being satisfied as to who is qualified in an appointment process, the delegated manager must also be satisfied as to who is not qualified.

67        The Board finds that Mr. Pattee was sufficiently informed of all assessment results to meet his obligation as the delegated manager. According to his testimony, he relied on the assessment board members, who had been tasked with assessing the candidates. He was informed of the assessment results throughout the process through daily discussions with the assessment board members. When a board member requested a change to someone’s result following an informal discussion, Mr. Pattee made the final decision.

68        The complainant pointed out that Ms. Hitchcock informed her by email that she had been eliminated from Process 2; however, the Board does not find that improper. The PSEA gives the PSC and its delegates the authority to make appointments. As the PSC stated in its audit follow-up report, letters of offer must be signed by a delegated manager. The PSC did not say that the delegated manager had to sign all the appointment process results and there is no such requirement under the PSEA.

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

VI. Order

70        The complaints are dismissed.

June 14, 2016.