FPSLREB Decisions

Heard at Moncton, New Brunswick,
July 5 and 6, 2016.

REASONS FOR DECISION

I. Introduction

1        Tyson Ross (“the complainant”), a correctional officer with the Correctional service of Canada (CSC), filed complaints of abuse of authority with the Public Service Labour Relations and Employment Board (“the Board”) in relation to two acting appointments at Dorchester Penitentiary in Dorchester, New Brunswick.

2        The complainant alleges that the respondent abused its authority by choosing to use non-advertised appointment processes. He also alleges that the respondent abused its authority in its assessment of the appointees’ qualifications.

3        The respondent denies the allegations.  It maintains that it had discretion over the choice of assessment method and there was no abuse of authority in the choice of process. The respondent further submits that there was no abuse of authority in the assessments of merit in this case.

4        On April 19, 2016, the Board ordered that the complainant’s two complaints be consolidated for hearing purposes.

5        A hearing was held on July 5 and 6, 2016. The Public Service Commission (PSC) did not attend, but it participated in the process by providing written submissions about its policies and the legislative framework governing appointments in the public service. It took no position on the merits of the complaints.

6        The complainant called four witnesses, himself, the appointees (Mr. Leger and Mr. Bastarache), and Ed Muise, who was the warden of Dorchester Penitentiary at the time the hearing was held.

7        The respondent called one witness, Pascale-Andrée Thibodeau, who as the assistant warden, operations, at Dorchester Penitentiary, was involved in the processes that led to the appointments at issue.

8        For the reasons that follow, I find that there was abuse of authority in the assessments of merit of the two appointees. The complainant has not proven that there was abuse of authority in the choice of selection process.

II. Issues

9        The Board must determine the following issues:

1. Was the appointment process carried out by the appropriate authority?
2. Did the respondent abuse its authority when it chose non-advertised processes to fill the two acting Correctional Manager (CX-4) positions?
3. Did the respondent abuse its authority in its assessments of the appointees’ qualifications?

10        In his written allegations, the complainant alleged that Ms. Thibodeau showed personal bias. No evidence was led to support that allegation, and the complainant did not address it at the hearing. Therefore, I will not deal with it.

III. Analysis

A. Abuse of Authority – General Principles

11        Subsection 77(1) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) states that a person in the area of recourse may make a complaint that he or she was not appointed or proposed for appointment by reason of an abuse of authority by the PSC or the deputy head.

12        The complainant bears the burden of proving that, on a balance of probabilities, the respondent abused its authority in the appointment processes at issue (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8, at paras. 49 and 55).

13        “Abuse of authority” is not defined in the PSEA, but s. 2(4) states that “[f]or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

14        The Board and the former Public Service Staffing Tribunal (“the Tribunal”) have established that s. 2(4) of the PSEAmust be interpreted broadly. This means that the term abuse of authority must not be limited to bad faith and personal favouritism. In Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 21 and 38, the court confirmed that the definition of “abuse of authority” in s. 2(4) of the PSEA is not exhaustive and that it can include other forms of inappropriate behaviour. The extent to which the conduct is improper will determine whether or not it constitutes an abuse of authority (see Tibbs v. Canada (National Defence), 2006 PSST 8, at para. 66).

15        The respondent and the PSC argue that abuse of authority requires proof of intentional wrongdoing.

16        The Board and the Tribunal have consistently held that a finding of abuse of authority does not require proof of intent. As stated in Tibbs at para. 74:

To require that a finding of abuse of authority be linked to intent would lead to situations that clearly run contrary to the legislative purpose of the PSEA.  It could not have been envisioned by Parliament that, for example, when a manager unintentionally makes an appointment that leads to an unreasonable or discriminatory result, there would be no recourse available under the PSEA.  When a manager exercises his or her discretion, but unintentionally makes an appointment that is clearly against logic and the available information, it may not constitute bad faith, intentional wrongdoing, or misconduct, but the manager may have abused his or her authority.

17        The Federal Court of Canada has also confirmed that abuse of authority in the PSEA context does not require proof of intent. In Makoundi v. Canada (Attorney General), 2014 FC 1177, the Court stated that there could be a finding of abuse of authority without proof that the abuse was intentional. In Lahlali the Federal Court stated that it would be wrong to interpret the concept of abuse of authority as requiring an element of intention (see Lahlali at para. 37).

B. Choice of non-advertised process

B. 1. Evidence

18        The respondent determined that it was necessary to staff two correctional manager (CX-04) positions on the operations desk at Dorchester Penitentiary. The positions were responsible for such tasks as managing and deploying staff, organizing escorts, and conducting briefings. At nights and on weekends, the incumbents were the senior managers in the institution, and as such, they ran the institution and managed crises. The position had to be filled at all times, without exception. It was a demanding position that required special training. All correctional manager (CX-4) positions in New Brunswick were classified bilingual imperative.

19        Ms. Thibodeau was the hiring manager who carried out the selection processes on behalf of Diane Russon, the Acting Warden. Ms. Thibodeau made recommendations and Ms. Russon made the appointments at issue.

20        Ms. Thibodeau consulted with human resources advisors. They checked an existing pool, but no candidates were available. They then decided to initiate an advertised selection process.

21        The selection process for a developmental opportunity as an acting correctional manager (CX-4) at Dorchester Penitentiary was posted with a closing date of July 15, 2014. The complainant applied. On July 18, 2014, he was advised that the process had been cancelled due to an insufficient number of applications.

22        Another selection process for the same kind of developmental opportunity was posted with a closing date of August 5, 2014. The complainant applied. A notification dated November 20, 2014, advised employees that this process had also been cancelled. No reasons were given.

23        Ms. Thibodeau stated that the second selection process resulted in her having only three candidates that met the language level, and in her view, only one of them was suitable for the position. Ms. Russon returned from a meeting of the Regional Management Committee and told Ms. Thibodeau that the Committee was considering running a regional selection process for correctional managers (CX-4), with a national area of selection to attract more bilingual candidates. Ms. Thibodeau decided that it was a better use of time and resources to cancel the selection process for Dorchester Penitentiary and to have the candidates resubmit their names to the regional process.

24        The complainant entered into evidence a series of emails in which a Human Resources Officer advised Ms. Thibodeau that she did not think there would be a regional process. Ms. Thibodeau replied as follows: “Cancel. We’ll decide if we repost after Christmas. I have no time right now.”

25        Ms. Thibodeau explained that in spite of what the Human Resources Officer had written, Ms. Russon had advised her that a regional process was being contemplated. Her plan was to cancel the Dorchester Penitentiary process and wait until after Christmas. It was then confirmed to her that a regional process would be held. Ms. Thibodeau stated that the regional process took longer to start than she had anticipated.

26        On August 27, 2014, Mr. Leger was appointed acting correctional manager (CX-4) for a period of less than four months. On December 27, 2014, his acting appointment was extended to July 31, 2015, in an internal non-advertised process. The December 27, 2014, appointment is the subject of the complaint bearing PSLREB File No. 2015-9619.

27        On February 10, 2015, an Information Regarding Acting Appointment notice was published on the “Publiservice” website. The Board received the complaint about this appointment from the complainant on February 21, 2015.

28        The Checklist for Non-Advertised Appointment Process (“the Checklist”) was a mandatory form. The Checklist for Mr. Leger was signed on February 3, 2015, by Ms. Russon and Ms. Thibodeau, and on March 18, 2015, by a human resources advisor.

29        The rationale for the use of a non-advertised process for Mr. Leger’s appointment was as follows:

Only two people remain in a valid pool who meets [sic] the language requirements for the position and they were already acting as Correctional Managers at Dorchester. All Correctional Manager positions at Dorchester Penitentiary are Bilingual Imperative CBC. Given the number of Official Languages complaints that we have received lately and the amount of time required to train a new Correctional Manager, it was felt that it would be better to place someone bilingual in an acting capacity that could be developed to potentially fill the position on an indeterminate basis in the future should that person be successful in a future process.

30        Two notations were added by hand. The first was “2011- Regional Pool”. The second was “Recent 2014 CX-04 regional process identified 1 qualified candidate for [Dorchester Penitentiary]. This candidate is currently CX-04 Ind. [at Atlantic Institution]”.

31        Mr. Leger testified that he had applied to the advertised process. Sometime after that, Ms. Thibodeau approached him and asked him if he was interested in an acting appointment for less than four months. He began the acting appointment a few days after that conversation. It was extended on December 27, 2014, and was extended again several times after that.

32        On September 8, 2014, Mr. Bastarache was appointed acting correctional manager (CX-4) for a period of less than four months. On January 7, 2015, his acting appointment was extended to July 31, 2015, in an internal non-advertised process. As with Mr. Leger, Mr. Bastarache’s acting appointment was extended several times after that. The January 7, 2015, appointment is the subject of the complaint with PSLREB File No. 2015-9477.

33        On January 8, 2015, an Information Regarding Acting Appointment notice was published on Publiservice. The Board received the complaint about this appointment from the complainant on the next day.

34        The Checklist for Mr. Bastarache was signed on January 21, 2015, by Ms. Russon, on January 18, 2015, by Ms. Thibodeau, and on January 19, 2015, by a human resources advisor.

35        The typewritten rationale for the use of a non-advertised process for Mr. Bastarache’s appointment was virtually identical to the one used for Mr. Leger.

36        Two notations were added by hand. The first was “2011- Reg. Pool”. The second was “Recent 2014 CX-04 regional process identified 1 qualified candidate for [Dorchester Penitentiary] who is currently CX-04 [at Atlantic Institution]”.

37        Mr. Bastarache testified that Ms. Thibodeau approached him about accepting an acting appointment of less than four months, which he accepted. He started the acting appointment on September 8, 2014, and it was extended on January 7, 2015.

38        Ms. Thibodeau stated that she chose non-advertised processes to extend the acting positions because she needed the two positions filled. Vacancies had a financial cost and an impact on other correctional managers, because the duties of the position required that someone be in it at all times. Therefore, she needed to staff the two positions while waiting for the advertised process to be completed.

39        Ms. Thibodeau consulted with human resources advisors who told her that the choice of non-advertised processes was appropriate in the circumstances. She had checked existing pools and had conducted an advertised process that was unsuccessful.

40        Ms. Thibodeau explained that she started with appointments for periods of less than four months because at the time, she thought she would have the results of the Dorchester Penitentiary advertised process sooner. Also, there was an urgent need to fill the positions, to manage overtime costs.

41        CSC policy allowed for appointing a unilingual person into a bilingual position when the acting period was of less than four months. Ms. Thibodeau did not consider that option. Given that the training was so extensive for the position, she chose to find a person who met the essential qualifications and the language requirements, so that that person had the potential to eventually move into an indeterminate correctional manager (CX-4) position.

42        Ms. Thibodeau stated that the rationales for Mr. Bastarache and Mr. Leger were almost identical because the situation justifying non-advertised processes was the same in both cases.

43        Mr. Muise was not involved in Mr. Bastarache’s and Mr. Leger’s appointments. However, he spoke in general terms about the situation at Dorchester Penitentiary. In his view, an important consideration for using the non-advertised processes was having bilingual appointees. He also commented that when the extensions at issue were made, the options were limited, in that there was no pool of qualified candidates to draw from.

B. 2. The complainant’s position

44        The complainant submitted that the respondent’s choice of non-advertised processes in this case was an abuse of authority for the following reasons:

• Neither Ms. Russon nor Ms. Thibodeau had the authority to choose which process to use;
• the respondent used acting periods of less than four months when it knew that they would have to be extended;
• the reasons given for using the non-advertised processes were not supported by the documentation given to the complainant;
• the acting appointments of less than four months gave the appointees an unfair advantage when it came to deciding to extend the appointments; and,
• the fact that the appointees were already acting in the positions did not justify rolling them over into longer acting appointments via non-advertised processes.

B. 3. The respondent’s position

45        The respondent’s choice of non-advertised processes was allowed by the PSEA and was justified. The non-advertised processes to extend the acting appointments were interim measures. The respondent had a rationale for choosing a non-advertised process in each case that was linked to its organizational needs and priorities.

B. 4. PSC’s position

46        According to the PSC Choice of Appointment Process Policy, the choice of selection process must be consistent with the organization’s human resources plan and the core and guiding values of fairness, transparency, representativeness and access. Deputy heads are required to ensure that written rationales are prepared that demonstrate how a non-advertised process meets established criteria.

B. 5. Was the appointment process carried out by the appropriate delegated authority?

47        The complainant submitted that the respondent’s choice of non-advertised processes in this case was an abuse of authority as neither Ms. Russon nor Ms. Thibodeau had the authority to choose which process to use. I find that the evidence does not support this allegation.

48        The CSC Commissioner established delegated authorities through the CSC Instrument of Delegation of Authorities in the Area of Human Resource Management (the “delegation instrument”). The applicable version is that dated November 20, 2013.

49        The delegation instrument ranks CSC positions from 1 to 6, one being the Commissioner. It then goes through the different human resources decisions and identifies to what level the Commissioner has delegated the authority to make them.

50        A warden is level 4, meaning that a person in that position can make decisions delegated to levels 4-6, but cannot make decisions delegated to levels 1-3. Ms. Russon, as Acting Warden, was at level 4. Ms. Thibodeau, being an assistant warden, was at level 5.

51        Authority to approve the use of an internal non-advertised process for indeterminate or term appointments is described on page 12 of the delegated instrument. The provision reads as follows:

Approve the use of a non-advertised process for indeterminate or term appointments from within the public service in the following circumstances:

- Appointment of an incumbent in their reclassified position; 4

- Appointment of a member of a designated group; 4

- Promotion of an employee within an approved professional development program; 4

- Appointment following an unproductive staffing process; 2

- Change of tenure from term to indeterminate in situations where the Treasury Board Term Employment Policy does not apply; 3

- Initial acting appointment of 4 months up to 12 months as a result of non-advertised process; 4

- Other; 2 (Any circumstances not identified above)

Following approval as indicated above, make indeterminate or term appointments from within the public service as a result of the above-mentioned non-advertised processes; 5

52        The complainant argued that the appointments of Mr. Leger and Mr. Bastarache were appointments “following an unproductive staffing process”, because there were two advertised processes conducted before the non-advertised processes, and neither resulted in appointments. This meant that neither Ms. Thibodeau nor the acting warden had the authority to approve a non-advertised process, because this action required a person with level 2 authority.

53        I find that this section of the delegation instrument does not apply in the present circumstances. The complaints at issue are with respect to acting appointments. Acting appointments, including extensions, are dealt with on page 14 of the delegation instrument which reads:

Acting Appointments (including extensions)

NOTE: See Internal Advertised and Non-Advertised for the delegation of the above-mentioned initial acting appointments

Appoint a person in an acting capacity for a period of less than 4 months; 6

Extend the appointment of a person in an acting capacity where the cumulative working period is for a period of up to 12 months; 4

Extend the appointment of a person in an acting capacity where the cumulative working period is for a period of up to 24 months; 3

Extend the appointment of a person in an acting capacity where the cumulative working period is for a period of more than 24 months; 2

54        There is only exception to the application of this section for acting appointments: that is in the case of an “initial acting appointment” over 4 months and up to 12 months, made as a result of an internal non-advertised process. While there were prior appointments of less than 4 months, the appointments that are the subject of this complaint are the first that were from 4 months to a year. However, I find that in this delegation instrument, a distinction (which does not exist in law) is made between appointments and extensions. Accordingly the ‘extensions’ at issue could not be described as ‘initial acting appointments’. Thus, for the purposes of determining who had the delegated authority, it is necessary to consult the section on Acting Appointments, on page 14. The situation in this case is best described by the second circumstance listed under the Acting Appointments section (extension of an acting appointment where the cumulative working period is for a period of up to 12 months). In that situation, the delegation instrument sets out that a person at level 4 has the delegated authority to make the appointment. Therefore, the Acting Warden, Ms. Russon, had the requisite authority to act in these circumstances.

55        The evidence showed that Ms. Thibodeau did the work of conducting the non-advertised processes on behalf of Ms. Russon, the sub-delegated manager with authority to choose the processes and make the appointments. The Checklists confirm that Ms. Russon gave her approval for the choices of process, no doubt on the recommendation of Ms. Thibodeau.

56        The Board and the Tribunal have determined that the sub-delegated manager may have assistance running a selection process, as long as the sub-delegated manager retains the delegated authority for making the decisions (see Robbins, at para. 50).

57        The complainant raised that Ms. Thibodeau signed the Checklists in the box for the sub-delegated manager’s signature. He argued that this was a violation of the delegation instrument. However, the evidence is clear that Ms. Russon, not Ms. Thibodeau, was the sub-delegated manager in both processes. I find that that fact that Ms. Thibodeau signed the Checklists in the wrong box was a minor error.

B. 6. Was the choice of process itself an abuse of authority?

58        The Board cannot find that there was an abuse of authority simply because a non-advertised process was chosen, as this option is specifically allowed in the PSEA. Section 33 states: “In making an appointment, the [PSC or delegate] may use an advertised or non-advertised appointment process.”

59        The complainant has the burden of proving that the choice itself of non-advertised processes constituted an abuse of authority (see Robbins v. the Deputy Head of Service Canada, 2006 PSST 0017). For the reasons that follow, I find that the complainant failed to meet this burden.

60        The PSC had a “Choice of Appointment Process Policy” that set out requirements for deputy heads. As stated as follows in Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 0007:

124. The PSC has assessed that non-advertised processes are a risk area in terms of fair and transparent employment practices. The PSC policy requires that, in the interest of fairness and transparency, deputy heads establish and communicate criteria for the use of non-advertised processes. It also requires a written rationale demonstrating how the choice of a non-advertised process meets the appointment values of access, fairness and transparency.

61        In accordance with PSC requirements, the CSC released a human resources management bulletin (“Bulletin 2007-23”) on the criteria for non-advertised appointment processes. It stated as follows:

Correctional Service of Canada will use non-advertised appointment processes to help the organization meet its business and human resources needs in a manner that respects the Public Service appointment values of fairness, access, transparency and representativeness.

62        Bulletin 2007-23 listed a number of situations in which non-advertised processes could be used as follows:

- Appointment of an incumbent to their reclassified duties;

- Special Assignment Pay Plan (SAPP);

- Special Deployment for Executives;

- Promotion of a person within an approved Apprenticeship or Professional Training Program.

...

- Other reasons that are not listed in the above criteria, but support a non-advertised appointment process as the best option that meets the needs of CSC and respects the Public Service appointment values. The rationale must make reference to past efforts to recruit by advertisement, citing the area of selection used and the results achieved.

63        The CSC also issued a human resources management bulletin (“Bulletin 2007-24”) on acting appointments. It stated as follows:

Soliciting interest from employees for periods of acting less than four (4) months will not constitute justification for a non-advertised process should the acting extend beyond the initial four (4) month period.

Soliciting interest from employees for periods of acting less than four (4) months when it is known from the outset that the period will be longer (i.e. language, maternity, extended sick leave replacements, etc.) should not occur.

Acting appointment opportunities for periods greater than four (4) months, as a norm, will be the result of an advertised appointment process. Non-advertised acting appointment greater than four (4) months will be the exception rather than the rule.

[Emphasis in the original]

64        Both PSC policy and the CSC’s bulletins outlined the mandatory requirement for a written rationale demonstrating how the choice of a non-advertised process met established criteria and appointment values. The Checklist was a mandatory form. It included the following instructions:

RATIONALE (Please ensure that your rational [sic] addresses the following points)

1. Why a non-advertised appointment process is being chosen over an advertised Process

2. How the action respects the guiding values of fairness, access, transparency and representativeness

3. Is the action consistent with the [human resources] plan and if not why is it the best option

4. Impact of decision on access to employment or developmental opportunities, employee morale and/or employee perceptions related to fairness, transparency,  arbitrariness or personal favouritism

5. Why person is the right fit Appointments of less than four months

65        Appointments of less than four months are excluded from the requirements to provide a written rationale and to assess merit.

66        The complainant states that the respondent showed bad faith and that it breached policy when it made the appointments of less than four months.

67        The Public Service Employment Regulations (SOR/2005-334; PSER) state that appointments of less than four months cannot be the subject of a complaint to the Board. Delegated managers have a great deal of discretion when making such appointments. I make no finding as to whether the acting appointments of less than four months were appropriate. I will consider the circumstances surrounding them only to the extent that they are relevant to considering the acting appointments that are the subjects of the complaints before me, i.e., the extensions of the acting appointments to a period of more than four months and up to a year. As the Federal Court of Canada stated in Brown v. Canada (Attorney General), 2009 FC 758, the Board must consider the evidence from a global perspective and must focus on the overall picture.

68        Ms. Thibodeau stated that she chose four months less a day in each case because at the relevant times (August 2014 for Mr. Leger, and September 2014 for Mr. Bastarache), an advertised selection process was underway. There was an urgent need to make acting appointments to manage overtime costs and to relieve the correctional managers of the extra duties the vacancies were causing them.

69        The PSER specify that official language requirements do not apply to acting appointments of less than four months. Ms. Thibodeau and Mr. Muise testified that while that was so, bilingual officers were chosen for the short acting appointments because management wished to avoid official language complaints, and it wanted to give such opportunities to employees who had the qualifications to be considered for indeterminate appointments.

70        By the time the acting appointments were extended (in December 2014 for Mr. Leger, and in January 2015 for Mr. Bastarache), the Dorchester Penitentiary internal advertised selection process had been cancelled, and Ms. Thibodeau had decided to wait for the results of a regional process.

71        The important dates for Mr. Bastarache are as follows:

• September 8, 2014: start of the acting appointment of less than 4 months;
• January 7, 2015: start of the extension of the acting appointment;
• January 8, 2015: date of signature regarding assessment of merit;
• January 8, 2015: Information Regarding Acting Appointment notice was published on Publiservice;
• January 9, 2015: Board received the complaint about this appointment;
• January 18, 19 and 21, 2015: dates of signatures on Checklist.

72        The important dates for Mr. Leger are as follows:

• August 27, 2014: start of the acting appointment of less than 4 months;
  December 27, 2014: start of the extension of the acting appointment;
• February 2 and 3, 2015: dates of signatures regarding assessment of merit;
• February 10, 2015: Information Regarding Acting Appointment notice was published on Publiservice;
• February 21, 2015: Board received the complaint about this appointment;
• February 3 and March 18, 2015: dates of signatures on Checklist.

73        As stated above, the Checklist was intended to confirm that the choice of non-advertised process was made in accordance with the applicable criteria and values. The evidence shows that the Checklists for Mr. Bastarache and Mr. Leger were not signed until well after the acting appointments were made. Also, the Checklist regarding Mr. Bastarache was not signed until after the complaint was filed. There is no policy statement on when the Checklists should be completed. However, the fact that one did not exist until after a complaint was filed raises doubts as to whether the requirement would ever have been met if the complaint had not been filed.

74        Furthermore, the Checklists for both extensions do not address most of the information required in the instructions. The rationales state only that there were no candidates in any pool and that bilingual appointees were needed.

75        These deficiencies are unfortunate. However, I find that in the circumstances of these processes, they did not reach the level of abuse of authority. While the Checklists lacked detail and were signed late, they contained enough information to justify the choice of the non-advertised processes. In addition, further clarification was provided at the hearing.

76        Ms. Thibodeau recommended non-advertised processes because she needed to have two correctional managers (CX-4) working on the desk. The need was urgent, given the financial cost of vacancies and the impact on other correctional managers. It was important to have the positions filled while waiting for the regional process to run its course.

77        Ms. Thibodeau further noted that she had run an unsuccessful advertised process and that she had checked existing pools. According to advice from human resources officers, she met the policy criteria for non-advertised processes.

78        Mr. Muise stated that the correctional manager position on the desk had to be filled 24 hours a day, 7 days a week. At all times, a sufficient number of correctional managers were needed to run a full-time operation, which meant having people to step in at the last minute if an unexpected vacancy arose.

79        It appears that the regional process in question was not launched until August 2015. The complainant stated that Ms. Thibodeau knew at the time the acting appointments were extended that no other regional process would launch soon. However, the complainant provided no evidence substantiating this claim. I note that Ms. Thibodeau testified that she had not known how long the regional process would take.

80        Bulletin 2007-24 made it clear that soliciting interest from employees for acting periods of less than four months would not constitute justification for a non-advertised process should the acting extend beyond the initial four-month period.

81        However, Ms. Thibodeau did not use that justification in this case. As stated, she chose non-advertised processes for the extensions to keep the positions filled while she waited for results from a regional process that was supposed to be held, given that she had tried an advertised process with no success, there were no candidates left in existing pools, and a bilingual appointee was needed.

82        The respondent had a rationale for choosing a non-advertised process that was linked to its organizational needs. The complainant did not prove an abuse of authority in the choice of selection process for the acting-appointment extensions of Mr. Bastarache and Mr. Leger.

C. Did the respondent abuse its authority in its assessments of the appointees’ qualifications?

C. 1. Evidence

83        On a national level, the CSC developed a mandatory statement of merit criteria and conditions of employment for correctional manager (CX-4) positions. It listed the following essential qualifications:

• education (a secondary school diploma or a satisfactory score on the PSC test approved as an alternative, the successful completion of a provincially or territorially approved secondary school equivalency test, or an acceptable combination of education, training, and experience);
• experience delivering correctional operations activities;
• experience participating in case management activities;
• knowledge of the Corrections and Conditional Release Act (S.C. 1992, c. 20) and other legislation related to the position;
• knowledge of security policies and practices:
• management excellence (action management, financial management, and people management);
• engagement;
• strategic thinking; and
• values and ethics.

84        Ms. Thibodeau conducted the assessment of merit for both Mr. Leger and Mr. Bastarache on the basis of her personal knowledge, having been their supervisor since 2011. She could not remember if she used anything other than her personal knowledge.

85        Mr. Bastarache and Mr. Leger stated that they had no meetings with managers to discuss essential qualifications. However, Mr. Bastarache stated that he was asked to supply his high school diploma. Mr. Leger stated that he had already provided his résumé in a prior advertised process.

86        Ms. Thibodeau recorded her conclusions on side-by-side assessment forms, which listed the essential qualifications and conditions of employment on one side, and her conclusions for each one on the other.

87        The side-by-side assessment forms are undated. However, they are accompanied by documents entitled “Signed Statement of Persons Present at the Evaluation Committee” (“the Statement”). Ms. Thibodeau’s signature on the Statement for Mr. Bastarache is dated January 8, 2014 (the appointment began on January 7, 2015; I assume that the year should have been 2015). She and Ms. Russon signed Mr. Leger’s Statement on February 3 and 2, 2015, respectively (the appointment began on December 27, 2014). Therefore, it appears that Mr. Leger’s written assessment of merit was completed well after the start of the acting extension.

88        By signing the Statements, Ms. Russon and Ms. Thibodeau attested to the fact that in their assessments, they respected the guiding principles of fairness, transparency, access, and representativeness.

89        Both Ms. Thibodeau and Mr. Muise acknowledged that the side-by-side assessments in this case were not as detailed as they should have been. Ms. Thibodeau stated that her written explanations were not as good as her thought process at the time of the assessments.

90        In both assessments, nothing was written about the education essential qualification.

91        For three of the eight essential qualifications (engagement, strategic thinking, and values and ethics), the comments for Mr. Bastarache and Mr. Leger are identical and read as follows:

- engagement: “appears to make good use of his partners, to consult and ask questions; he also works well with the union and other departments”;

- strategic thinking: “appears to be able to look at a problem from every angle, and he always tries to come up with solutions that will work operationally and that will be a win-win for management and staff; he thinks outside the box”; and

- values and ethics: “appears to have the values and ethics to do the job; works well, and is respectful to everyone”.

92        For the essential qualification “Knowledge of Corrections and Conditional Release Act, and other legislation related to the position”, Ms. Thibodeau wrote “He passed CTP” for both Mr. Bastarache and Mr. Leger. The “CTP” was the correctional training program for new correctional officers.

93        For the essential qualification “Knowledge of security policies and practices”, Ms. Thibodeau wrote “He passed CTP and all recertification thereafter” for both Mr. Bastarache and Mr. Leger.

94        Mr. Muise testified that the knowledge required of correctional managers was above the level of a recruit because correctional managers were the senior officers on duty at nights and on weekends. Mr. Muise said that to assess knowledge, normally, the person must demonstrate that he or she has the required knowledge and not just indicate that they passed a test.

95        The complainant produced evidence that showed that sometime after the acting appointments were extended, Mr. Bastarache and Mr. Leger applied to an advertised process for a correctional manager (CX-4) position, and neither was successful. Mr. Bastarache was screened out because he did not meet a knowledge criterion at the written exam. Mr. Leger was screened out because he did not meet criteria for management excellence and strategic thinking at the interview.

C. 2. The complainant’s position

96        The complainant submitted that the respondent abused its authority in the application of merit for the extensions of Mr. Leger’s and Mr. Bastarache’s acting appointments for the following reasons:

• the persons appointed were not assessed against the merit criteria by a board;
• the assessments of merit were superficial, and the written assessments were inadequate;
• the respondent failed to assess an essential qualification; and,
• the assessments were largely based on the appointees’ experience gained during the appointments of less than four months.

C. 3. The respondent’s position

97        The respondent replied that it had discretion over the choice of assessment method. There was no abuse of authority in the assessments of merit in this case.

C. 4. The PSC’s position

98        The respondent has discretion with respect to choosing assessment methods, but they must be directly linked to the identified merit criteria and must be able to accurately measure the criteria.

99        The manager sets the merit criteria, decides which parts of it will be assessed and applied, and selects the person to be appointed. The assessment board assesses candidates and provides the manager with the information required to make the appointment.

100        All appointments must be based on merit, and processes must be transparent and fair.

C. 5. Assessment of Merit

101        The extensions of Mr. Leger’s and Mr. Bastarache’s acting appointments were subject to s. 30 of the PSEA, which states in part as follows:

30 (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.

(2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and

(b) the Commission has regard to

(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,

(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and

(iii) any current or future needs of the organization that may be identified by the deputy head.

…

102        CSC Bulletins 2007-23 and 2007-24 required that there be a written assessment of the proposed appointee against the essential qualifications and conditions of employment.

103        The PSC’s “Policy on Assessment” required that “[t]he assessment processes and methods effectively assess the essential qualifications and other merit criteria identified and are administered fairly.”

104        The PSEA gives broad discretion to the respondent in terms of the choice of assessment method. Section 36 states as follows:

36 In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

105        The Board and the Tribunal have determined that an assessor using his or her personal knowledge is an accepted assessment method (see Visca v. Deputy Minister of Justice, 2007 PSST 24 at para. 53).

106        In the complaints before me, the complainant alleged that the respondent failed to assess an essential qualification, that the assessments of merit were superficial and the written assessments were inadequate.  I find these allegations to be substantiated.

107        The side-by-side assessments in this case lack sufficient detail.

108        First, they lack proof that the appointees met the education essential requirement. At the hearing, Mr. Bastarache stated that he had provided his secondary school diploma. This confirms that he met the education essential requirement. However, when Mr. Leger was asked whether at any point of the assessment process he had been asked to provide any documentation, he answered that he had provided a cover letter and résumé for an earlier advertised process. Therefore the Board has been presented with nothing that confirms whether or not Mr. Leger met the education essential requirement.

109        Second, the explanation for the essential qualification “Knowledge of Corrections and Conditional Release Act, and other legislation related to the position” is insufficient. Ms. Thibodeau wrote “He passed CTP” for both appointees. Mr. Muise testified that correctional managers needed to have a level of knowledge that is superior to that of a new recruit. He added that to test knowledge, the candidate would normally be required to demonstrate that they have the required knowledge; in other words, it was normally not enough to say that a person had passed a test.

110        Third, the explanation for the essential qualification “Knowledge of security policies and practices” is insufficient.  Ms. Thibodeau wrote “He passed CTP and all recertification thereafter” for both appointees. Again, to evaluate knowledge required for correctional managers, it is normally necessary to require the candidate to demonstrate knowledge; confirmation that the person passed entry level tests and subsequent recertification is not enough.

111        Fourth, rationales for three of the essential qualifications were identically worded for each appointee. I recognize that persons responsible for selection processes may develop sentences for addressing different competencies and may use similar sentences when they apply in assessing different candidates. However, in this case, significant portions of the written side-by-side assessments were identical. This raises doubt as to whether full individual assessments were carried out for each of the appointees. This leads me to find that the written assessments of merit are insufficient to establish that Ms. Thibodeau’s assessments were thorough enough to confirm that each appointee indeed met these three essential qualifications.

112        Furthermore, the statements for the three essential qualifications are not determinative. The PSC in its written submission stated that, as indicated in the PSC Guide to Implementing the Assessment Policy, it is important that assessment methods be able to accurately measure the merit criteria. Ms. Thibodeau stated that the appointees “appeared” to have certain characteristics that were linked to the qualifications. This is not the same as a declaration that the appointees actually met these qualifications.

113        In addition, I am concerned by the fact that Mr. Leger’s assessment appears to have been done well after the appointment began, which means that there is no indication that at the time the appointment was made, any assessment of merit had been conducted.

114        Mr. Bastarache and Mr. Leger were originally appointed with no assessment of merit. Their acting-appointment extensions were made by way of non-advertised processes, which although permitted, are less transparent than advertised processes. Ms. Thibodeau conducted her assessments of merit based only on her personal knowledge of the appointees. That is a permissible method, but again, it is less transparent than other methods.

115        In these circumstances, it was very important for Ms. Thibodeau to complete thorough and comprehensive written records of her assessments of merit and to clearly show that the appointments had been made in accordance with the PSEA, PSC policies, CSC bulletins, and the guiding principles of fairness, access, transparency and representativeness.

116        I find that the record and the evidence do not establish that the appointees met all of the essential qualifications when their acting appointments were extended. Ms. Thibodeau testified that her assessments were made on the basis of her personal knowledge of the appointees. However, she recorded nothing about what in her personal observations confirmed for her that each appointee met each of the essential qualifications.

117        In my view, these cases are similar to the situation in Patton v. Deputy Minister of National Defence (2011 PSST 0008). In that case, the Tribunal found that the respondent had failed to demonstrate that one essential qualification was assessed. It stated:

The Tribunal finds that the failure to assess [one essential qualification] renders it impossible to ascertain whether Mr. King’s appointment conforms to the merit requirements of s.30 of the PSEA. Appointing someone who does not meet the essential merit criteria constitutes an abuse of authority (para.37).

118        I note that the complainant has introduced evidence that shows that the appointees were unsuccessful in subsequent advertised processes because they did not meet certain essential qualifications of the mandatory statement of merit criteria for correctional manager (CX-4) positions. This fact is irrelevant in terms of the present matters. The fact that the appointees were unsuccessful in later advertised processes does not prove that they did not meet all the essential qualifications when their acting appointments were extended.

IV. Decision

119        Considering the evidence as a whole, I cannot conclude that when the appointees’ acting appointments were extended, the appointments were made on the basis of merit.

120        I find that the complaints of abuse of authority in the application of merit are substantiated. There was no abuse of authority in the choice of selection process.

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

V. Order

122        The complaints of abuse of authority in the application of merit are substantiated. The complaints of abuse of authority in the choice of selection process are not substantiated.

123        I remain seized of the complaints for a period of 90 days from the date of this decision to permit the complainant and the respondent to reach an agreement on the appropriate corrective action. In the event they are unable to reach an agreement, either the complainant or respondent may contact the Board to arrange for a hearing on the issue of remedy.

May 2, 2017.