FPSLREB Decisions

Heard at Ottawa, Ontario,
December 7 and 8, 2015.

REASONS FOR DECISION

Introduction

1        The complainants, Colin Thompson, Artur Przybylo, and Stephen Paynter, allege that the respondent, the President of the Canada Border Services Agency (CBSA or “the respondent”), abused its authority with respect to both the choice of process and the application of merit in appointing Chaluka Ailapperuma (“the appointee”) on an indeterminate basis to a CS-04 information technology (IT) technical specialist position in the CBSA’s Information Science and Technology Branch (ISTB) in Ottawa, Ontario.

2        They allege that the process was tainted with bad faith and bias in favour of the appointee as his selection had been predetermined. The respondent failed to provide a valid justification for using a non-advertised process and tailored the Statement of Merit Criteria (SMC) to the appointee’s qualifications. They also allege that he was nonetheless unqualified under that SMC. At the hearing, the complainants withdrew their allegation about personal favouritism.

3         The respondent denies all allegations, maintaining that the choice of process and the appointment were made in accordance with the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13; PSEA) and staffing values, and that the appointee was qualified for the position.

4        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.

5        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365), was proclaimed into force, creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Staffing Tribunal (“the Tribunal”) and the Public Service Labour Relations Board. The Board is now responsible for handling complaints filed under the PSEA. Consequently, this decision was rendered by a panel of the Board.

6        For the reasons that follow, I find that the complainants did not establish on a balance of probabilities that the respondent abused its authority in making this appointment.

II. Background

7        To avoid duplicating evidence, the parties agreed that Mr. Thompson would testify to all the complaints. He will be referred to as “the complainant”. He has been working as a technical specialist at the CS-03 group and level in the Commercial Systems Development Division (“the Commercial Division”) since May 2011. That division is responsible for the IT development of all CBSA commercial systems and commercial risk scoring in support of the assessment and the passage of commercial goods entering and leaving Canada.

8        In 2012 and 2013, he worked on the “Beyond the Border Action Plan” project, specifically the commercial side of the “E-Manifest” initiative, which was an advanced commercial information initiative created to ensure accurate, timely, and advance mandatory electronic reporting of cargo, conveyance, crew and freight forwarder, and importer information. At that time, the project was in the pre-analysis and design phase.

9        Around September 2012, Johanne Maisonneuve became the director of the Commercial Division, to whom the complainant reported. She testified that the CBSA was created in December 2003 by an order in council and that it was an amalgamation of the Canada Customs and Revenue Agency (CCRA) with border and enforcement personnel from the Department of Citizenship and Immigration and the Canadian Food Inspection Agency. Ms. Maisonneuve explained that she began working for the CCRA in 1992 in human resources and that she presided over approximately 30 staffing processes over her entire career at both the CCRA and CBSA.

10        She stated that in 1990, she obtained a bachelor’s degree in information technology and that she began working for the CBSA as a CS-01. She moved up through the different levels and eventually became a CS-03. Once at the CS-03 group and level, she decided to go into management instead of becoming a technical expert. She testified that her strengths are in management and in “putting the right people in the right positions”.

11        In September of 2012, Pierre Ferland, the director general, asked her to join the commercial side of operations to take over the development and implementation of the E-manifest project; its ultimate objective was to “push the border further”. Her role was to evaluate the project and brief the Director General on its health and development. She noted that the project was delayed and that it was not on course with the schedule that had been provided to the Treasury Board. The Director General instructed her to take steps to ensure the project’s timely development and roll out.

12        Shortly after Ms. Maisonneuve became the director, the appointee joined the section as an acting CS-04. After that, others were brought in, and certain duties were taken from him and reassigned to others. The complainant became responsible for only one application specific to commercial passage. In July of 2013, he requested a one-on-one meeting with her to discuss his concerns and aspirations for advancement.

13        In that meeting, the complainant informed her of his career aspirations and told her that he was looking for CS-04 experience. She informed him that she saw four positions at the CS-04 group and level to be filled by individuals she had preselected: one as a manager, master data management and sustainability; one as a risk assessment manager; one to manage the E-manifest project’s infrastructure, to be assumed by the appointee; and finally, one in general application development to be filled on a rotational basis.

14        In the months that followed, he was discouraged because he was not gaining any CS-04 experience. He began looking for other opportunities outside the Commercial division. Eventually, in October 2013, he left the section because there were no opportunities for him.

15        The appointee’s “Notification of Consideration” (“NOC”) was posted on Friday, May 16, 2014, which preceded the Victoria Day long weekend. The end day of the waiting period was Tuesday, May 20, 2014, the first day after the long weekend.  This made the complainants question the transparency of the process. The complainants considered the period short although it technically met the five day minimum period set out in the PSC’s notification policy made pursuant to s. 48(2) of the PSEA. Nevertheless, the fact that it was posted on a long weekend made it almost impossible to contact the person responsible for the appointment in the prescribed time.

16        On May 29, 2014, the appointee’s “Notification of Appointment or Proposal of Appointment” (“NAPA”) was posted. The complainant felt that this was the fulfilment of a “predetermined prophecy” and that it was unjust. On May 30, 2014, he filed his complaint in which he stated that he and others in his section had met all the essential qualifications listed for this position. He maintained that because this position was non-advertised, he and the other complainants were precluded from an opportunity to “compete” fairly for it. In his view, opening the process to all employees would have allowed the best person to be selected.

III. Issues

17        The complaints raise the following issues:

• Did the respondent abuse its authority by selecting a non-advertised appointment process?
• Did the respondent abuse its authority in its selection of the merit criteria?
• Did the respondent abuse its authority in its assessment of the appointee’s qualifications?

IV. Analysis

18        Section 77 of the PSEA provides that an unsuccessful candidate in the area of selection for an internal non-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.

19        “Abuse of authority” is not defined in the PSEA, but s. 2(4) states that “[f]or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”  Errors or omissions can amount to an abuse of authority, even in the absence of serious carelessness or recklessness (Canada (Attorney General) v. Lahlali, 2012 FC 601 at para. 38). However, the seriousness and nature of any errors or omissions, and the degree to which any conduct is improper, will determine whether there is an abuse of authority (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 66; Song v. Deputy Minister National Defence, 2016 PSLREB 73 at para. 11).Complainants bear the burden of proof, which requires them to present sufficient evidence for the Board to determine, on a balance of probabilities, that a finding of abuse of authority is warranted.

A. Issue I: Did the respondent abuse its authority by selecting a non-advertised appointment process?

1. The choice of a non-advertised appointment process

20        The complainants allege that the process was tainted with bad faith and bias in favour of the appointee. They allege that the supporting documentation contains serious errors and contradictions and that it was approved after the appointee was selected. The respondent denies these allegations. It submits that the hiring manager carried out an “internal scan” and determined that this process was a valid option to consider. A hiring manager has broad discretion under the PSEA when selecting an advertised or non-advertised process.

21        Ms. Maisonneuve testified that the CS-04 IT technical specialist position was created in accordance with the Director General’s vision of the E-manifest project to ensure the project’s prompt development and completion. A quarterly internal report to the CBSA dated November 30, 2013, indicated that the project was reviewing the deployment and implementation strategy for a July 2014 release and that it would require revising the integrated schedule. The revised schedule was forecast to be prepared by January 2014.

22        She stated that in November 2013, the health of the project had a “yellow” status, which meant that it was delayed five years. The business outcomes identified in the report indicated that one of its purposes was to improve the CBSA’s ability to detect and interdict high-risk shipments, cargo, and people before they enter Canada. The other was to align with the United States’ and international initiatives that seek to use advance information to facilitate trade and manage risks more effectively. It required someone who had horizontal organizational expertise, someone who knew the CBSA’s business, travellers, and the commercial and intelligence side of the organization. The project was worth over $420 million.

23        Because it had already been delayed five years, she testified that it was imperative to carry out a complete revamp of the project and ensure that the right people were in the right positions to ensure its completion. Otherwise, there was a risk that it would have been completely eliminated or contracted out. In January 2014, the project’s overall health was assigned a “red” status, which meant that it was in jeopardy.

24        She and Mr. Ferland signed the non-advertised appointment process form (“rationale form”) regarding the appointee’s appointment. As stated on the rationale form, its purpose is to help managers explain the choice of a non-advertised process by identifying the applicable criteria and how it is the right option and is consistent with the CBSA’s “HR Plan” and its core and guiding values.

25        The form was dated October 10, 2013. The proposed appointment date as indicated on the form is “January 1, 2013”, for a CS-04 IT technical specialist. Given the form was dated October 10, 2013, I believe this is a typo and the actual appointment was for January 1, 2014. The appointment was ultimately only made on May 29, 2014. It appears, however, that the form was not finalized by

26        October 10, 2013. Email correspondence between Ms. Maisonneuve and Human Resources (HR) sent between November 12 to 27, 2013, was filed in evidence. The emails contained exchanges about what should be written in several of the form’s sections.

27        The form contained one section in which to enter the criterion used to justify a non-advertised appointment process, from a list of possible criteria set out in the respondent’s non-advertised appointment policy (“the policy”), which I discuss in greater detail later in this decision.  The criterion “highly specialized skills” was selected, after which the following statement was included:

…

It is essential for CBSA to appoint the [appointee] in an indeterminate CS-4 IT Tech Specialist position as we are seeking an individual with highly specialized technology skills – for the beyond the border action plan, we need a candidate that knows, understand[s] and has been exposed to all CBSA mission critical systems. He possesses the expertise and the qualifications we need to meet our high profile technology agenda and all its deliverables. He has over 18 years hands-on experience dealing with CBSA 7-24 IT operating environment which is key to the position being staffed.

28        Ms. Maisonneuve testified that at the time of the appointment, the position’s title was “solutions architect”, even though the form refers to a CS-04 IT technical specialist position. She explained that upon review internally, it was found that no employees had the expertise and qualifications needed for the position. An external staffing process had been run several years earlier for several similar positions, from which no appointment had been made. That process was for a CS-04 IT senior specialist position, with the selection process number 10-BSF-EA-IND-HQ-IST-CS-3071 (“the CS-04 pool”).  A pool of qualified CS-04 candidates was generated from this process, which was kept open from March 2, 2012, to September 7, 2013. I note that the position complained of is a CS-04 IT technical specialist position, not an IT senior specialist or solutions architect position. I also note that Ms. Maisonneuve testified that she consulted the results from two previously conducted appointment processes, however, the rationale form does not support this assertion.  It states that prior to the appointment, she only looked at the qualified candidates from the above mentioned external process (the CS-04 pool) as possible appointees.

29        In justifying the choice of a non-advertised selection process, she indicated on the form that the resumes of two candidates that were in the initial CS-04 pool had been reviewed, and they did not meet the special requirements of the “depth and breadth” of experience required in the area of negotiating CBSA technology projects with international partners.

30        In these circumstances, according to her, the choice of a non-advertised process was fair and just to CBSA employees, public service employees, and Canadians. She indicated that the technical experience needed was unique and that running another process would have been inefficient, more costly, and time consuming. Considering that she knew that the appointee had the necessary skills and experience, it would have been a waste of money and valuable time for the public service to conduct an advertised process.

31        The complainant indicated that the “CS-04 pool had expired and never been updated”, which I understand to mean that a new selection process was not initiated. The application period for that process ended in 2011, shortly after he joined the CBSA. The pool was not designed for a technical position with commercial requirements. The pool was for a CS-04 IT senior specialist, not a CS-04 IT technical specialist, which is the subject of the complaints.

32        Furthermore, in his view, since Ms. Maisonneuve was new and unfamiliar with her team’s qualifications, she could not have accurately determined that no other employees in the Commercial Division had the required qualifications without assessing them first. 

33        The form indicated that she considered the impact of the appointment on staff morale. She testified that she discussed this with both Mr. Ferland, the director general when the appointment process was initiated, and also his successor in the position, Christiana Cavazzoni. There was a need for the appointee to share his experience with junior staff, to provide them with opportunities to grow into similar positions.

34        The form states that “the appointee’s extensive experience is well recognized by his peers and that they fully endorse his nomination as he also has extensive experience negotiating with international airline committees”. According to her, no other employees at the same group and level as the appointee were considered because none of the CS-03 technical employees had the “depth and breadth of experience” needed for this position, specifically, experience dealing and negotiating with technical international airline committees.

35        She indicated on the form that all employees in the section had been informed during a staffing meeting with their immediate supervisors of the choice of a          non-advertised appointment process and that they all were invited to discuss it with the hiring manager. She stated that the need to staff this position was made known to employees through a “formal selection process” and now through this “appointment without a competition,” meaning presumably the prior advertised appointment process that resulted in the CS-04 pool and the present non-advertised process. 

36        The complainant testified that this was not true and that a meeting never took place. The complainants and the employees in the Commercial Division were never provided an opportunity to discuss the appointment with their managers because the appointment was done “behind closed doors”. Ms. Maisonneuve maintained in her testimony, however, that she was under the impression that the meeting had been done.

37        At the time the rationale form was filled out, no details were provided  about the duties that the CS-04 IT technical specialist position incumbent was expected to perform; nor was there any indication about the content of the SMC against which the appointee would be assessed. Ms. Maisonneuve only testified in very general terms as to what the position’s duties entailed.

38        The “Summary” section of the rationale form contained several paragraphs stating that the non-advertised appointment was consistent with the applicable staffing values and the CBSA’s human resources management, employment equity, and integrated business and human resources plans.  Ms. Maisonneuve also attests in the summary that the appointment was made objectively without personal favouritism or bias, and that the proposed appointment is justified and in accordance with the CBSA’s Criteria for Use of Non-advertised Appointment Processes. The form was signed by Ms. Maisonneuve and by Mr. Ferland with the October 10, 2013, date stamped next to his signature.

39        In January 2014, HR sent a memorandum (“memo”) to Maurice Chénier, Vice-President of ISTB, in which it provided information and advice regarding the proposed non-advertised appointment. The memo pointed out that non-advertised apppointments are regularly monitored for staffing compliance. It explained that some of the considerations to justify the non-advertised appointment included: the fact that multiple methods were considered to staff this key position and the position is critical in that it requires specific knowledge and expertise in CBSA specific projects.

40        Because management had no success in its efforts to staff this position from the pool created in the prior advertised process, HR considered the staffing values were met. HR cautioned that although the non-advertised appointment process was an option, it would be necessary for management to demonstrate how they plan to avoid facing a similar situation in the future; how they plan on preparing succession for this position, should it become vacant; and how this could have been avoided in the first place to enhance future human resources management.

41        HR representatives signed the memo on January 21, 2014. The ISTB’s vice-president signed it on April 24, 2014, after checking off the box indicating that he supports the non-advertised process. No evidence was presented to explain the delay from the non-advertised appointment form being initiated in October 2013 or the initial urgency that prompted creating the position to the appointee’s appointment in June 2014. The respondent simply stated that the project was in jeopardy.

42        Ms. Maisonneuve testified that the first time she saw the memo was when she received the staffing file. She indicated that its purpose was to ensure that the CBSA’s staffing values were respected. Ultimately, for the reasons explained earlier, they decided to proceed with a non-advertised staffing process. 

2.  The policy on using non-advertised appointment processes

43         Pursuant to the PSC’s Appointment Framework, the CBSA has established standard criteria for the appropriate use of non-advertised appointments in the form of a policy. Two versions of the policy were entered into evidence by the complainant, who obtained them through the exchange of information process. One version is, dated April 26, 2011, and the other is undated. The respondent did not specify which policy was in effect when the complaints were filed. For the purposes of this complaint, I have considered both. They each state that non-advertised appointment processes may be used provided they are consistent with the organization’s integrated business and HR Plan.

44        They state that the CBSA is responsible for establishing its criteria for and demonstrating that appointments comply with the guiding values of fairness, access, transparency, and representativeness of the public service. In essence, both policies state the same requirements except the requirement for a non-advertised appointment process rationale form.

45        In this case, the criteria relied upon to justify the use of a non-advertised appointment process was “other circumstances”, specifically, highly specialized skills. The policies state that these types of non-advertised appointments have not been approved for general use within the CBSA but may be considered when it can be demonstrated that they are the best staffing option in specific circumstances. One of the listed circumstances is the case of an individual who possesses “highly specialized skills”, such as a recognized expertise that has been targeted for recruitment under the HR Plan. No evidence was presented to demonstrate how the appointee’s skills or expertise were targeted for recruitement under the HR Plan.

46        Before deciding on the use of a non-advertised appointment under other circumstances, the April 2011 policy requires that careful and full consideration should be given to candidates in existing qualified pools that could be used to staff the position. The undated version requires that reasonable attempts be made before resorting to a non-advertised appointment process.

47        These include any kind of advertised staffing recruitment exercises such as internal and external advertised processes; deployments, assignments, or secondments; and acting opportunities. The sub-delegated manager may consider expanding the area of selection to include a sufficient number of candidates who are likely to meet the qualification requirements. Ms. Maisonneuve testified that before proceeding with the non-advertised appointment in this case, she consulted a list of persons on priority status that was provided to her.  She concluded that none of them had the requisite knowledge and experience. She then explored the possibility of selecting one of the two persons who were still in the pool of qualified candidates from the previous CS-04 process.  She met with both of them. One was not interested in working at the CBSA, and the other did not have the required “depth of experience” with the CBSA’s systems. Ms. Maisonneuve testified that the external staffing process for the CS-04 IT senior specialist position received a disappointing number of qualified candidates. Because of this, she assumed that she could expect fewer qualified candidates if the respondent were to advertise the CS-04 IT technical specialist position requiring a more specific qualification. Given the disappointing number of qualified candidates for the CS-04 IT senior specialist position, no other candidates could have qualified for the disputed position.

48        Ms. Maisonneuve knew the appointee from having worked with him and determined that he would be the right fit for the position.  Both versions of the policy detail an approval process for non-advertised appointments made under “other circumstances” and set out certain additional requirements and a specific approval process. They require that for all non-advertised appointments, a rationale must be prepared that includes the following information:

• compliance with the integrated business and HR Plan;
• proof that reasonable attempts were made but were unsuccessful to fill the vacancy before proposing the non-advertised appointment for all appointments made under other circumstances;
• a demonstration of how the guiding values were respected:
• fairness, which is that decisions were made objectively, free from political or personal favouritism; that policies and practices reflect the fair treatment of employees and applicants; and that applicants have the right to be assessed in the official language of their choice in an appointment process;
• access, which is ensuring people have a reasonable opportunity to apply and be considered for employment;
• transparency, which means information about decisions, policies, and practices is communicated in an open and timely manner; and
• representativeness, which means that appointment processes are conducted without bias and do not create systemic barriers, to help achieve a public service that reflects the Canadian population it serves.

49        The rationale form has sections set aside for each of these points, all of which had been filled out by Ms. Maisonneuve in relation to this appointment and the appointee. For instance, under the representativeness heading, she pointed out that the appointee is from a visible minority group and affirmed that the values of representativeness and fairness were being respected through this process.

50        I summarized much of the other information that was on the rationale form earlier in this decision. I find that while some of the sections on the form lacked details and basically contained affirmations that the appropriate values and standards were complied with, the information on the form was sufficient to demonstrate the basis upon which the respondent decided to proceed by way of a non-advertised process in this case. The complainant did not adduce any evidence of any ill motive on the part of the respondent.

51        The complainant raised an issue with respect to the fact that the respondent indicated that the IT senior technical specialist position was very specific in that it required highly specialized skills that no one other than the appointee possessed, yet it used the SMC of an IT senior specialist position for which the organization had four positions that it could staff, according to its “Tactical Staffing Template for Human Resources and Business Planning”. Although it would have been preferable for the respondent to create one document detailing the SMC to be used for the IT senior technical specialist position, nothing prevented the respondent from using the SMC of another position and add any other qualification it required.

52        The respondent indicated that there was an urgent need to appoint someone to the CS-04 IT technical specialist position because the E-Manifest project could not proceed without it. The complainant questioned this claim, pointing out that the evidence showed that the project had been delayed for five years as of November 2013. The respondent did not explain the reason for the delay. Moreover, it took seven months from the time the non-advertised appointment form began being filled out in October 2013 to the time the appointment was made in June 2014. The complainant maintains that the respondent could have chosen to run an internal advertised process within that same amount of time, and it could have appointed a qualified candidate. While this delay does raise some questions, it is not sufficient, in my view, to establish an abuse of authority.

53        The complainant claims that Ms. Maisonneuve lacked sufficient knowledge of her team’s qualifications to properly assess who should be considered for the appointment.  However, this argument is based on the mistaken assumption that she must consider whether other qualified persons were available to be appointed.  Ms. Maisonneuve was in fact under no obligation under the PSEA to consider anyone other than the appointee. 

54        Section 30(4) of the PSEA states that there is no requirement “to consider more than one person for an appointment to be made on merit.”  As the Tribunal noted in Jack v. Commissioner of the Correctional Service of Canada, 2011 PSST 26 at para. 18, employees do not have a guaranteed right of access to every appointment that may arise. An assertion by a complainant that he or she and others might be qualified does not establish that a respondent abused its authority in deciding to appoint someone else. Furthermore, aside from the complainant’s personal opinion, no evidence was adduced to establish that she did not know her team’s qualifications.

55        As to the contradictory evidence of the complainant and Ms. Maisonneuve about whether or not staff was informed in advance that the appointment would be made by a non-advertised process, I find that the issue is ultimately immaterial since, as was noted by the Tribunal in Clout v. Deputy Minister of Public Safety and Emergency Preparedness, 2008 PSST 22 at para. 38, the fact that other employees did not know in advance about a non-advertised appointment is not evidence of abuse of authority.  There is usually not, nor does there need to be, prior notice that a non-advertised process is being conducted.

56        The complainants allege that the respondent was biased towards the appointee and that that was the true justification for its choice of a non-advertised selection process. In Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10, the former staffing tribunal determined that “bias” on the part of the assessment board could constitute an abuse of authority. 

57        In Drozdowski v. Deputy Head (Department of Public Works and Government Services) 2016 PSLREB 33, the Board discusses the history of the terminology used to define “bias” in the context of an administrative decision making process in Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL) and Denny v. Deputy Minister of National Defence, 2009 PSST 29; and determined the test to be reworded as follows: “If a reasonably informed bystander could reasonably perceive bias on the part of one or more of the persons responsible for assessment, the Board can conclude that abuse of authority exists”.

58        The complainants allegation that the respondent was biased towards the appointee rests on the fact that it was predetermined that he would be appointed to the disputed position because of having worked with Ms. Maisoneuve in the past. In my view, this is not sufficient to establish a reasonable apprehension of bias. As mentioned earlier, the respondent is under no obligation to consider more than one candidate. Had the complainants established that the respondent did not have a valid justification for the selection of a non-advertised appointment process, or demonstrated that the appointee was not qualified for the position, there may have been some basis upon which to make a bias claim.  But that was not the case, as I explain later in this decision.

59        The complainants highlighted the fact that the rationale form said that the appointee had been assessed against the SMC. The parties filed in evidence the assessment table entitled “Assessment: Statement of Merit Criteria and conditions of employment” (“assessment table”), which is 19 pages long and documents how the appointee was assessed. The complainants pointed out that the assessment table bore no date and was not signed by Ms. Maisonneuve at the line where her name had been typed in. Mr. Ferland’s name had also been typed in but then stricken out and replaced in handwriting by Ms. Cavazzoni’s name. Hers is the only signature on the document. Given that the rationale form was signed by Mr. Ferland, the fact that his successor signed the assessment table means that it was probably prepared after the rationale form. The respondent did not provide any explanation for how this came to be.

60        However, I find that even if the assessment table was filled out afterwards, it does not establish that the appointee was not assessed or that the SMC did not exist when the rationale was formulated. 

61        Accordingly, even if the assessment table was for whatever reason completed after the rationale form, the complainants have not demonstrated that the respondent was biased against the complainant or in favour of the appointee.

62        For these reasons, I find that the complainants have not established that the respondent was biased and that it abused its authority in selecting a non-advertised process for this appointment. The respondent has demonstrated a justification for its decision: the urgency of the E-manifest project.

B. Issue II: Did the respondent abuse its authority in its selection of the merit criteria?

63        Section 30(2) of the PSEA sets out the definition of merit and confers broad discretionary authority to deputy heads to establish essential and asset qualifications for an appointment.  The provision states that an appointment is based on merit when the appointee meets the essential qualifications, as established by the deputy head.

64        The complainants allege that the respondent failed to establish fair essential criteria. The job description was tailored to the appointee’s qualifications and the respondent failed to link the SMC with the job description. The complainants also contend that all the supporting documentation was approved after the appointee was appointed.

65        The respondent takes the position that it did not abuse its authority in the application of merit and that it established fair essential merit criteria. As to the linkage between the job description and the SMC, job descriptions are only one of many factors that need to be considered when establishing an SMC. The respondent denies tailoring the SMC to the appointee’s experience and knowledge.

66        I also cannot conclude from the mere fact that the assessment table may have been completed after the rationale form, that the SMC itself was created after the appointment.

67        The complainant argued that the essential qualifications listed in the external process’s SMC are not relevant to the CS-04 IT technical specialist position and were added to provide the appointee with an unfair advantage. For example, experience in FOSS is listed as essential. The appointee has personal experience on some of the information management (IM) and IT platforms listed under the experience criteria, such as “FOSS Mainframe”. Yet, at the time of the appointment process in 2014, this system was being decommissioned and was not used in the Commercial Division. This was not disputed by the respondent.

68        The complainant claims that experience in these areas was added to the position only because the appointee had experience working with them, from which the complainant inferred that the essential criteria were specifically tailored to the appointee.

69        Ms. Maisonneuve explained that the appointee had horizontal experience across the CBSA working with the “Advanced Passenger Information” (“API”) and FOSS as well as COBOL. She stated that although the CBSA no longer uses some of those platforms, tools, and languages, the E-manifest only replaced 60% of the current commercial systems using that programming. Knowledge of those IM and IT platforms, tools, and languages was a requirement of knowing how the systems interact.

70        The complainant stated that experience with API, which was also included in the SMC, was irrelevant to the appointment because it dealt only with traveler information, which is not pertinent to the commercial side. However, Ms. Maisonneuve indicated that API was a requirement on the commercial side. She gave the example of an individual attempting to illegally import human organs.

71        As I mentioned earlier, pursuant to s. 30(2) of the PSEA, managers enjoy a broad discretion to determine the qualifications for a position (see Neil v. Deputy Minister of Environment Canada, 2008 PSST 4 at para. 45).  Although a complainant may not agree with the selection of a given criterion in the SMC, his or her disagreement is not a basis for a finding of an abuse of authority (Mahakul v. Deputy Minister of Transport, Infrastructure and Communities, 2011 PSST 23 at para. 22).

72        As for the complainant’s claim that the SMC against which the appointee was assessed did not relate to the work description, the Tribunal has held that it is not necessary that essential qualifications pertaining to a particular position be listed in a work description (Feeney v. Deputy Minister of National Defence, 2008 PSST 17 at para. 42.  What is required is that qualifications be established for the work to be performed (Neil at para. 46). Based on the evidence adduced, I am not persuaded that the qualifications set for this position were unrelated to the work to be performed.

73        I therefore conclude that the respondent did not abuse its authority in the determination of the merit criteria for this appointment.

V. Issue 3 – Did the respondent abuse its authority in its assessment of the appointee’s qualifications?

74        Section 36 of the PSEA confers discretionary authority to delegated managers in the selection and use of assessment methods. However, these authorities are not absolute. For instance, there may be a finding of abuse of authority if a complainant can establish that the assessment method has a fundamental flaw. As was noted in Ouellet v. President of the Canadian International Development Agency, 2009 PSST 26, assessment methods that do not assess qualifications or are unreasonable and discriminatory or produce a result that is unfair can constitute an abuse of authority.

75        The respondent claims that it assessed the appointee fairly, and the appointee met all the qualifications for the position, including essential experience in COBOL and FOSS. The rationale form indicates the following:

… the Appointee meets and exceeds all the criteria required for this position. He has the competencies, skills and knowledge required to perform in his job and all his qualifications have been assessed against the SMC. More specifically his technical experience within CBSA is very rare, working with API-FOSS and COBOL.

76        Ms. Maisonneuve also stated on the form that the appointment was made objectively and only on the basis of merit. She indicated that his qualifications were assessed against the merit criteria as he was the only candidate qualified for the position at that time. She also wrote that, considering the depth and breadth of his experience and exposure to CBSA IT, it was in the CBSA’s best interests to appoint him using a non-advertised appointment process as it was cost effective.

77        The assessment table said that the appointee had over 18 years’ experience building multi-tier distributed applications and development/maintenance of I.T. solutions.  The complainant claimed that this is not accurate as the CBSA did not exist until 2003. This is not a valid criticism. Border operations obviously pre-date 2003 and were managed by the CBSA’s predecessor organizations, the CRAA and Revenue Canada for whom, according to the appointee’s resume, he provided services for over five years in the period prior to 2003.  Presumably, this comment was about the appointee’s experience at those organizations.

78        The complainant stated that the appointee did not list any experience or knowledge of COBOL in his resume. The merit criteria indicates that recent and significant experience was required with different IM and IT platforms, tools, and languages, such as Java, COBOL, API, Field Operations Support System Mainframe, LAN and distributed networking, UNIX (several), Cognos, SAP, and data warehousing. The complainant acknowledged in cross-examination, however, that it was simply a list of types of experience being sought and that it was not essential to have experience in all the IM and IT platforms.

79        The rationale form indicated that in deciding to appoint the appointee, Ms. Maisonneuve considered the impact of the appointment on staff morale. She testified that she discussed this with both Mr. Ferland and Ms. Cavazzoni. There was a need for the appointee to share his experience with junior staff, to provide them with opportunities to grow into similar positions.

80        The rationale form states that the appointee’s extensive experience is well recognized by his peers and that they fully endorse his nomination as he also has extensive experience negotiating with international airline committees. According to her, no other employees at the same group and level as the appointee were considered because none of the CS-03 technical employees had the depth and breadth of experience needed for this position, specifically, experience dealing and negotiating with technical international airline committees.

81        In her response with respect to HR’s question about the appointee’s knowledge of API, “Field Operation Support Service Mainframe”, and “Trusted Trader”, she indicated that he was the senior technical lead for “Trusted Trader, Beyond the Border (PV21)”. She added that the appointee had designed the technical communication protocol between “Commercial Portal” and the new Trusted Trader application. He oversaw the technical aspect of the development and performed coaching on the development code review and on best practices. He represented the Canadian government when data sharing was discussed with the United States’ Trusted Trader Application, and he represented the CBSA at the last “triple C” committee meeting. In her opinion, all that experience amounted to “highly specialized skills”.

82        She stated that she was familiar with the appointee’s experience and expertise. He is highly technical and likes to share his knowledge with others, and he is extremely patient and very approachable. He is well respected within as well as outside the organization and has demonstrated an ability to align people working on different projects to a common objective. He has wide experience working on different technological platforms.

83        She knew his abilities from having worked with him in 2008 delivering and implementing the “Personal Number Registration” project, which was responsible for evaluating traveller risk. He was often involved in other large-scale projects within the organization.

84        She testified that she reviewed the appointee’s resume in his two prior acting appointments as well as the present indeterminate appointment to the CS-04 IT technical specialist position. She noted his more than 18 years of experience in IT solutions within the CBSA and the CCRA, and the fact that before becoming a public servant, he worked as a consultant for a number of years.

85        The complainant testified that during the exchange of information as part of this complaint process, the respondent told him that the appointee had participated in the external appointment process that led to the formation of the CS-04 pool, but did not qualify. The complainant questioned how the appointee could now have been found qualified for the technical specialist position, which was ostensibly more specialized than the senior specialist position. 

86        Ms. Maisonneuve explained that in the interim, the appointee had gained additional experience from two acting appointments at the CS-04 level that extended from April 2012 to March 2014. The experience he gained in his acting appointments was determinative of his qualifications for the indeterminate CS-04 IT technical specialist position, including experience in conceptual systems designs and in technical architectural design.

87        Ms. Maisonneuve testified that the appointee reported to her during these acting appointments. He was the technical lead responsible for the integration of the Data Acquisition Processing System, and he worked on the FOSS. The duties performed in this position are similar to the duties that were to be performed by the disputed position in that he was responsible for reviewing code developed by more junior employees and to ensure the proper deployment of the project. The complainant stated that Ms. Maisonneuve favoured the appointee in that she gave him acting opportunities, one non-advertised and one advertised, which put him in a preferred position to obtain the CS-04 IT technical specialist position. But for those opportunities, he would not have had the highly technical skills experience required for the disputed position. 

88        However, the mere fact that an appointee has previously acted in the same or a similar position does not, in the absence of other supporting evidence, demonstrate personal favouritism, bias or generally abuse of authority (see, for instance, Soccar v. Commissioner of the Royal Canadian Mounted Police, 2013 PSST 14 at para. 42; Turner v. Deputy Minister of Citizenship and Immigration Canada, 2009 PSST 22 at para. 100). In the present instance, I note firstly that the complainants specifically declared at the hearing that they were withdrawing their allegations of personal favouritism. It would therefore be a breach of procedural fairness to enable them to raise this allegation anew at this stage. In any event, the respondent has provided a reasonable explanation for the two acting appointments. The first appointment was non-advertised and actually was made before Ms. Maisonneuve had assumed her duties at the Commercial Division. The second acting appointment was made from an advertised process. No evidence was adduced to support that the appointment had been disputed or was otherwise improper.

89        Therefore, I find that the respondent did not abuse its authority in its assessment of the appointee. The appointee had the required experience and met all of the pre-established essential qualifications.

VI. Conclusion

90        For all of these reasons, I find that the complainants did not establish on a balance of probabilities that the respondent was biased toward the appointee and that it abused its authority in his appointment. Although the rationale form supporting the appointment lacked detail in some sections, these omissions do not amount to an abuse of authority. The respondent had a valid justification in its decision to conduct a non-advertised selection process and was under no legal requirement to consider more than one candidate. The complainants did not demonstrate that the appointee was not qualified to do the work that was expected of him.

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

VII. Order

92        The complaints are dismissed and the files are closed.

March 7, 2017.