FPSLREB Decisions

Heard at Vancouver, British Columbia,
May 31 and June 1, 2016,
and by teleconference on June 29, 2016.

REASONS FOR DECISION

I. Complaint before the Board

1        Shelley Wepruk (“the complainant”) was a candidate in an internal advertised appointment process to fill an indeterminate SG-SRE-6 regional manager position (the “SG-6 position”) in the Department of Health’s Pesticide Compliance Program, Compliance and Enforcement Directorate (“the directorate”), in Burnaby, British Columbia. She was screened in but was eliminated from the process after she failed questions 3 and 4 of the written exam. She filed a complaint with the Public Service Labour Relations and Employment Board under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) challenging the appointment of Kelly Walker (“the appointee”).

2        She alleged that the Deputy Minister of Health (“the respondent”) abused its authority in the application of merit, both in the assessment of her candidacy, and the assessment of the appointee. She claimed that the respondent demonstrated personal favouritism and preferential treatment towards the appointee and that the composition of the assessment board could not have led to a fair and impartial assessment given the harassment and discrimination that she had suffered in the workplace. The Chairperson of the assessment board was biased against her because of her union activities and discriminated against her by reason of her family status and mental disability, in violation of the Canadian Human Rights Act (R.S.C. 1985, c. H-6; CHRA).

3        The respondent maintained that the decision to appoint the appointee was both transparent and fair. All candidates were independently assessed against the same Statement of Merit Criteria (“SOMC”) using the same assessment tool. The assessment board reached the consensus that the appointee was the successful candidate. The respondent denied the bias and discrimination allegations and indicated that they were unrelated to the staffing complaint before me.

4        The Public Service Commission (PSC) participated through written submissions addressing its relevant policies and guidelines. It did not take a position on the merits of the complaint.

5        For the reasons that follow, I find that the complaint is not substantiated. The complainant did not demonstrate that the respondent abused its authority in its assessment of her or in appointing the appointee. She did not demonstrate that the respondent was biased or that it discriminated against her on the basis of a prohibited ground.

6        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9), received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and title of the Public Service Labour Relations and Employment Board Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”) and the Federal Public Sector Labour Relations and Employment Board Act.

II. Background

7        The complainant testified that she joined the federal public service in 2002. She worked in the pesticide branch of the Pest Management Regulatory Agency at the Department of Health (“the department”) in Ottawa until 2005, when she decided to take a career-development option, which was a one-year assignment in policy and planning in the regional director’s office in Vancouver with no possibility of extension. While on the assignment, she competed in and won the indeterminate SG-5 position, which is when her problems began. She felt she was blacklisted and labelled a troublemaker for filing grievances about her relocation expenses and about multiple appointments on an acting basis.

8        She recalled how proud she was in 2002 to join the public service and to be working for the federal government in Ottawa. She took the one-year assignment to gain relevant experience. At that time, the regional office was a great place to work.

9        In 2011, the public service employee survey revealed that the department’s B.C. Region had the lowest results in all of Canada. Management attempted to address the problem before the next employee survey but was unsuccessful. In 2014, it merged the compliance and enforcement divisions with the regional directorate.

III. Reasons

10        Section 77 of the PSEA provides that an unsuccessful candidate in the area of selection for an internal advertised appointment process may file a complaint with the Board that he or she was not appointed or proposed for appointment because of an abuse of authority. Subsection 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.”

11        It is well established that the complainant bears the burden of proof with respect to a complaint of abuse of authority (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 49, 50, and 55). For the complainant to meet that burden, she had to present sufficient evidence for the Board to determine that on a balance of probabilities, a finding of abuse of authority was warranted.

A. Issue I - Did the respondent demonstrate personal favouritism or preferential treatment in its assessment of the appointee?

12        The complainant alleged that the respondent demonstrated personal favouritism towards the appointee. In addition, the appointee received acting opportunities, which the complainant was continually denied. According to the complainant, this constituted preferential treatment. But for those opportunities, the appointee would not have been the successful candidate. I will address the complainant’s allegation of preferential treatment in the marking of the appointee’s exam later in these reasons.

13        The respondent denied that any personal favouritism or preferential treatment occurred in the appointment process. The acting opportunities had no bearing on the appointment process. It maintained that all candidates were assessed independently and consistently.

14        In Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007 at para. 39, the former Public Service Staffing Tribunal (PSST) determined as follows:“Parliament referred specifically to bad faith and personal favouritism to make certain that there would be no argument that these improper conducts constitute abuse of authority.”It also determined that it was noteworthy that the word “personal” precedes the word “favouritism”, emphasizing Parliament’s intention that both words be read together and that personal favouritism, not other types of favouritism, constitutes abuse of authority.

15        The PSST determined that bad faith and personal favouritism are some of the most serious forms of abuse of authority, which the federal public service as a whole should diligently strive to prevent. When they occur, all necessary action should be taken to correct the abuse. Clearly, the purpose of s. 2(4) of the PSEA is to ensure that there is no argument that these improper conducts constitute abuse of authority.

16        The complainant called Senior Compliance Officer Mandy Deol, whose position is classified SG-SRE-4. At the time of the hearing, she had worked for the department for approximately 14 years and had not spoken to the complainant since the complainant’s termination. She reported to Denis Shelley, her manager, who reported to Regional Director Brian Mori. During her 14 years, she had applied only to an appointment process for a security border integrity officer position, classified SG-SRE--5. The complainant was the successful candidate, and Ms. Deol came in second in that process.

17        She explained that in the department’s B.C. Region, if management wanted a specific person for a position, then that person would receive the position. Several appointments on an acting basis were made, especially for four months less a day, and they were often extended without a posting being made. When someone was appointed on an acting basis to a position, it was often extended to more than a year. In cross-examination, Ms. Deol stated that she knew of a complaint that was made about appointments on an acting basis but that she was never involved in one.

18        Ms. Deol never applied to appointments on an acting basis and therefore could not comment on whether the complainant had been treated differently. She recalled one opportunity to act as an SG-6 for a six-week period. In 2012 or 2013, Kim Sealling, her immediate supervisor, emailed her to ask if she could backfill while Ms. Sealling was on leave for the summer. The appointment on an acting basis was not posted; nor was an expression of interest sent.

19        In cross-examination, Ms. Deol recalled acting for the complainant from 2005 to 2008 at the request of her manager, Mr. Shelley, because the complainant had gone on medical leave. As noted, she had been second in the appointment process for the complainant’s SG-5 position. During those three years, the complainant returned from sick leave and then left again, and Ms. Deol was again asked to backfill. She recalled that her appointment on an acting basis had been challenged via a complaint but was unsure if it had come from the bargaining agent. The person who filed the complaint discussed it with her. Several complaints were filed with respect to appointments made on an acting basis; generally, employees were comfortable with making complaints.

20        Ms. Deol explained that a manager position, classified SG-6, opened in the inspector drug compliance unit, which was never filled. Employees were given opportunities to act in this position, and she remembers the complainant doing so. The hiring practices in the department were not always open and transparent. She did not file complaints or grievances because she did not want to be the employee who complained about the supervisor. She recalled sharing the same concerns as the complainant did about Ms. Sealling always being awarded the appointments on an acting basis and raising it with Mr. Mori. She was aware of the rumour that the bargaining agent was not much help.

21        The complainant called her former colleague, Sammy Lee, as a witness. He testified that he had been an SG-4 senior compliance officer since 2008. He had applied for several positions in the past, including the position at issue, but was never successful. When applying for federal public service positions, there is always a lengthy delay before a response is received.

22        Mr. Lee did not recall ever being discriminated against in any staffing process. He never inquired into why he was unsuccessful in any given process. He found it easier to simply apply for other positions. He never filed a grievance out of fear of being labelled a troublemaker. Shortly after he joined the directorate, he became aware of a vacant SG-6 supervisory position. Although he did not recall noticing specific instances of favouritism, he believes that there is some in all departments. He did not believe that he was a favourite, and he never filed any complaints about favouritism with his bargaining agent. When employees filed grievances, management labelled them troublemakers.

23        Mr. Lee recalled applying for the SG-6 position in dispute. In his view, the appointment process lacked transparency because feedback was not given and the candidates were not provided with marked copies of their exams. He was not aware of any rumours that the appointee was the favourite for the position; nor did he know that she had acted in the position before the appointment process was launched.

24        In cross-examination, Mr. Lee agreed that the work performed in pharmaceuticals and pesticides is completely different. Pharmaceuticals manufacturing has little to do with pesticides compliance. The department’s pharmaceuticals area had two units: “Unit A” for pharmaceuticals and proper manufacturing practices, and “Unit B” for pharmaceuticals and drug compliance. The SG-6 position in pharmaceuticals in Unit A was filled. In Unit B, the SG-6 position is always filled via appointments on an acting basis, and it does not appear in the organization chart. Occasionally, an acting opportunity arises in the SG-6 supervisory position in Unit B. Mr. Lee agreed that if someone acts in the SG-6 position in Unit B, it gives that person an advantage when writing the exam.

25        The complainant called Damian Kakwaya, a former colleague. He has been working for the directorate for about 20 years. He identifies with a visible minority group and has not been successful at progressing from a senior compliance officer position classified SG-4. He recalled the SG-6 position being vacant for approximately 14 years and remaining vacant.

26        He applied for the SG-6 position but was unsuccessful on the exam. As it indicated, he understood that the exam was to assess the candidates’ knowledge of Canadian legislation and policies on pesticide compliance and enforcement and of the regulatory framework for pesticides in British Columbia. It also assessed the candidates’ ability to develop an effective regulatory approach for pesticide compliance. He did not ask and was not told why he failed the exam. He did not bother to request an informal discussion with Mr. Mori. In his view, he had seen enough in his 20 years of experience to know not to bother.

27        In cross-examination, Mr. Kakwaya indicated that he believed that he had enough knowledge and research experience to write the exam. Someone working in one compliance area can work in another; the only difference is the regulations. The Food and Drugs Act (R.S.C., 1985, c. F-27) covers a number of regulations; the sections on compliance are very similar. Working day-to-day in pesticides would provide a candidate in the selection process with an advantage in writing the exam because that person would be aware of any practice and policy changes. The opposite would also be true of someone working in pharmaceuticals.

28        When questioned about the exams, Mr. Kakwaya indicated that the assessment appeared inconsistent because some of them had not been marked. He believed that the assessment was not a controlled process because the rating guide indicated that “[a]ny other answers deemed acceptable by the board” would be considered. It did not make him confident that his exam had been marked fairly. Other candidates’ exams had not been marked, yet somehow, they were all eliminated from the process for failing the exam.

29        Mr. Kakwaya recognized that there was favouritism in the directorate and that certain employees were thus favourites. The managers and supervisors would go to lunch together and buy gifts for each other. He and a group of employees made a complaint to the ombudsman of conflict resolution to raise issues in the office. A formal all-day meeting was held with all employees about how to behave in the workplace. Ultimately, it was not helpful because nothing changed.

30        In cross-examination, Mr. Kakwaya explained that the SG-6 position had been vacant for almost 14 years, that one favoured individual was in it for a very long time, and that others were placed in the acting opportunity but not for as long. Ms. Sealling and Leslie Beaton were always selected. One of them had acted for over a year-and-a-half. Originally, the position was not posted, but once a term finished, it would be posted and renewed. There was no transparency in the appointment process. It was impossible to know who was acting and in what position.

31        Mr. Kakwaya did not bother to make a complaint. He chose to ignore that a group of employees would drink wine in the office after work, that managers and employees would buy each other lunch, and that one employee would bring a manager coffee every day. He did not identify the appointee as being a favorite or being part of this group. When he attempted to raise those issues with them to inform them that those things made other employees uncomfortable, the employee at issue said it was the group’s prerogative to buy coffee for whomever it wanted to. He recognized that he could have gone to see Mr. Mori but that he did not. He had already gone through a fruitless grievance process. Mr. Mori directed the managers to improve things in the workplace, but nothing was resolved.

32        In cross-examination, Mr. Kakwaya confirmed that the same group of people always bought coffee for each other and drank wine in the office after work hours. The invitation was not open to everyone. Mr. Mori was not involved in it. Mr. Kakwaya felt that Mr. Mori had confidence in and was supportive of him but that the work environment was rotten. Opportunities were only for the people in that group. At the time this complaint was filed, the work environment had not improved.

33        He confirmed that the conflict resolution matter came about via a staffing complaint that a group of four or five employees had filed in 2006 with the Professional Institute of the Public Service of Canada’s help. The workplace was toxic; he went into the mediation exercise as a partner because the group of employees had a job to do. In addition, a grievance had been filed about opportunities to act being denied to certain people. The favourites were always selected for the SG-6 appointments on an acting basis. Only an SG-5 could act in a supervisory SG-6 position. In other regions, everyone was provided with acting opportunities. Ultimately, the group did not pursue the grievance because of collective exhaustion with the process.

34        The respondent called Mr. Mori to testify. He became the regional director in the enforcement directorate in 2010. There is a clear division between pesticides and pharmaceuticals compliance and the enforcement of controlled substances, which includes tobacco and the Canada Vigilance Adverse Reaction drug reporting system. He was responsible for five business lines, and the complainant was at least two levels under him. He had little interaction with her. He heard her grievances at the second level of the grievance process and was briefed by managers. He did not spend much time on her grievances because he was the national executive leader for the controlled substance program. He was involved only with “hot” issues, none of which included her.

35        The appointments on an acting basis were offered only to employees in the pesticides unit and only for a limited time, four months less a day. The advice he received from the department’s human resources branch was that that was appropriate as it was a standard process. He disagreed with the complainant’s assertion that she did not pass the exam because she had not been given an opportunity to act in the position. The knowledge required to answer the exam could be found on the department’s website. As for the details of the ability question, the appointee was never given an opportunity to act in the SG-6 position. She was not from the pesticides group and was not an inspector. The answer to the ability question could be found in Regulatory Directive DIR 2007-02, which is publicly available. Questions 3 and 4 required the ability and knowledge to apply that directive and its relevant policies.

36        Mr. Mori agreed that overall, the workplace had issues and lacked promotional opportunities. It had always had issues. Several years ago, management had implemented a number of measures, including a multi-pronged program to address transparency issues in staffing. He agreed that there were favourites and that favouritism did exist, but stating that persons were appointed based on favouritism would be inaccurate. He disagreed that the complainant was blacklisted. Mr. Mori appointed one of the favourites to brainstorm a solution to address the perception of favouritism in the office to ensure that appointment processes would run fairly. The exercise was pointless.

37        He agreed there were inconsistencies with respect to who could act in the SG-6 position in the department’s B.C. Region. At one time, only an SG-5 could act in it. It is now open to SG-4s. He was not aware of whether the appointee had acted in the SG-6 position or whether she was a favourite. SG-5s are specialist inspectors in the directorate who perform a number of duties, including complex inspections. The SG-6 can also be a supervisor or a manager, depending on the unit. An SG-5’s experience and abilities are closer to those of an SG-6 than an SG-4’s.

38        When a choice exists of qualified candidates, s. 30(2)(b) of the PSEA indicates that the selection may be made based on additional asset qualifications, operational requirements, and organizational needs. The selection should never be made for reasons of personal favouritism. Undue personal interests, such as a personal relationship between the person making the selection and the appointee, should never be the reason for appointing someone. Similarly, selecting someone as a personal favour or to gain personal favour with someone else would be another example of personal favouritism.

39        Evidence of personal favouritism can be direct, such as facts that clearly establish a close personal relationship between the person making an appointment and the appointee. However, it will often be a question of circumstantial evidence in which some action, comments, or events before and during the appointment process must be reviewed. The complainant did not present any evidence that could lead to the conclusion that such conduct occurred between the assessment board members and the appointee.

40        The evidence presented establishes that there was favouritism in the directorate involving immediate supervisors and a group of specific employees. It also establishes that the work environment was toxic. However, it does not support a finding that the appointee was appointed to the position because of personal favouritism or because of any preferential treatment with respect to acting opportunities. No evidence was presented to establish that the appointee was among the favoured group of employees or that she was successful because of acting opportunities that the complainant had been denied. For these reasons, I find that this allegation of preferential treatment regarding acting opportunities has no substance.

41        Therefore, I find that the complainant has failed to prove that there was either personal favouritism shown towards the appointee or preferential treatment provided to her through acting opportunities, which amounted to abuse of authority in the respondent’s assessment of the appointee.

B. Issue II - Has the complainant established bias against her in the assessment of her exam?

42        The complainant alleged that Mr. Mori made several statements before and during the appointment process that indicated an adverse disposition towards her. His bias and his participation in her exam assessment unduly influenced her mark.

43        She alleged that Mr. Shelley reprimanded her for filing a grievance relating to her move from Ottawa, Ontario, to Vancouver, B.C. All her grievances were denied. She sought assistance from Mr. Mori with respect to her introduction to the department. She did not feel supported, and her introduction was terrible.

44        Mr. Lee testified that he was not aware of any reprisals being taken against persons exercising their rights under the relevant collective agreement. He indicated that maybe that had happened to the complainant but that he did not know. Employees seemed scared to use the grievance process and to resort to the bargaining agent for help. The complainant testified that because of the escalation of abuse in the office, she had to go on stress leave. She was blacklisted for filing grievances. She wanted an SG-6 acting opportunity but was never offered one.

45        Every time she took sick leave, her manager questioned her about it, and she was constantly harassed. She was disciplined for two days, and then she made an appeal to Mr. Mori. He did not provide her with any assistance, and he left Mr. Shelley to handle the situation. When she was denied an SG-6 acting opportunity, she filed a grievance.

46        This angered management further. The department’s B.C. Region is small and gossipy. Once someone has been blacklisted and labelled a troublemaker, it is impossible to change it. The respondent alleged that the complainant was a security concern. She felt that she had suffered a reprisal and that no security concerns had ever involved her. She was terminated and was not even allowed to collect her belongings.

47        In cross-examination, the complainant confirmed that she had filed a grievance about her relocation and five more with respect to salary, personal responsibility, volunteer leave days, one about loss of salary and reprisal because Mr. Mori would not let her return to work until she agreed to an independent Health Canada assessment by a psychologist. She filed allegations of systemic harassment. She claimed that she had suffered a reprisal because of management’s security concerns. She was never charged with any offence, and her employment was terminated in October 2014.

48        Mr. Mori did not recall the complainant ever being identified as a bargaining agent officer. He would have been informed of it if it were so. He did recall her filing grievances, but in his view, it was not the reason she did not pass the exam. Her grievances had no influence on his assessment of her.

49        Furthermore, the complainant alleged that the composition of the assessment board could not have led to a fair and impartial assessment given the workplace harassment that she suffered.

50        The respondent maintained the complainant’s workplace harassment allegation relates to her termination grievance and is unrelated to her complaint of abuse of authority in this appointment process.

51        The complainant did not understand how Mr. Mori could not have seen that there was a problem in the workplace or his refusal to take action and deal with it. There was no human resources oversight of his directorship or of Mr. Shelley’s management styles. She kept hoping that things would get better, but they did not. She was blacklisted, and there was no way she would have ever been appointed to the SG-6 position.

52        Mr. Kakwaya’s observation of the complainant was that she was always crying at her desk. He had no firsthand knowledge as to the cause of her distress and encouraged her to use the Employee Assistance Program. He recalled a conversation with her about hiring a lawyer, but he refused to become involved because he had participated in a similar process five years earlier. He did not want to rock the boat. The years from 2006 to 2013 were very tumultuous in the office. He agreed that the environment was toxic and that its impact on employees differed.

53        In her informal discussion with Mr. Mori, he informed the complainant that she had passed questions 1 and 2. She asked for a copy of the marking scheme, but he did not give her one. Her exam indicated that she had received 6 out of 10, yet the assessment board report indicated that she received 8.5. The exam did not specify what was required to pass it. Although she had a copy of the SOMC, and she knew she had to demonstrate her knowledge of Canadian legislation and policies on pesticides compliance and enforcement and the regulatory framework, there were no instructions on what would be evaluated specifically in each question. The appointment process was not transparent because the exam did not indicate the passing grade. She found that questions 3 and 4 were speculative. It was odd that they were asked because such matters are normally dealt with by an inspector and not a regional manager.

54        In cross-examination, the complainant indicated that she thought the exam was fair but that questions 3 and 4 were speculative. She could not decipher the expected answers. She could not relate the marking scheme to the knowledge and abilities requirements because it was not provided. Had she known the pass mark, she would have done things differently. The last two questions were based on tasks that she would have done as a border integrity specialist. She was especially surprised that she failed questions 3 and 4.

55        In January 2013, she wanted to speak with Mr. Mori. It took four emails to meet with him. He told her to meet with Mr. Shelley, her manager, and Ms. Sealling, her immediate supervisor. Only when she told Mr. Mori that she was complaining about them did he agree to meet with her. Every time she wanted to meet with him, she had to send him several emails or make an appointment with his secretary.

56        The bullying and harassment was increasing, and she did not receive any help from her bargaining agent. Mr. Mori told her that there was no use in complaining and that there was no point in making a harassment complaint because management would stick together and support Mr. Shelley.

57        She consulted a lawyer, who advised her to get out of the department as quickly as possible because it was impacting her health. Therefore, she applied for an appointment on an acting basis elsewhere in the department. She explained that she was not in a position to move back to Ottawa and that she was forced to stay in Vancouver and put up with the situation as best she could. She applied to other positions but was either always screened out or failed the exam. She recalled applying for another SG-5 position in another area, but she failed the exam. She did not understand how she could have failed an exam for a position she already held. She applied for the SG-6 position, and to her surprise, she was screened in, but in the end she failed the exam because the manager simply did not want her in the section.

58        Mr. Mori explained that the complainant was eventually terminated but that his role in it was limited. He had no role in the investigation of her or in any subsequent actions. The only interaction he had with her was that they worked on the same floor in the same building. She was initially an SG-5 emergency preparedness officer and then became an SG-5 border specialist. In both positions, he had no significant degree of interaction with her.

59        He explained that in 2014, the incumbent of the SG-6 position retired. Mr. Mori launched two appointment processes, one indeterminate and the other for people to act in the interim. An email was sent to the pesticide unit requesting expressions of interest. He received email replies from four different employees. He met with them, and their supervisor informed him that they were all qualified to act in the position. He did not question that further. He met with them and asked how they would like to define the time allocation for the appointment on an acting basis.

60        For the indeterminate process, Mr. Mori wrote to the Director General of the department’s Pest Management Regulatory Agency to ask him to appoint another member to the assessment board. He suggested Shawn Fancy, who worked in that agency. In the end, the assessment board had three members. Mr. Mori drafted the SOMC, the rating materials, and the test and the answers, which were sent to the other members for their input and comments. Mr. Fancy provided in-depth comments, which were incorporated into the materials.

61        The process was launched in February 2014. The first stage was the job opportunity advertisement (the “JOA”). Applications were received. Mr. Mori screened them independently, and so did Mr. Fancy. They met by phone and screened out one person. Approximately 20 persons applied, and all CVs and cover letters were screened.

62        His executive assistant organized a written exam. It was administered across Canada. A few candidates did not show up, and a few withdrew. The exam targeted the two knowledge criteria and the ability to develop a regulatory framework. Once the completed exams were received, three copies were made, one for Mr. Mori for marking, one for Mr. Fancy, and a clean one. The marking was done independently. In June, Mr. Fancy sent Mr. Mori his marked copies. They summarized their marking decisions over the phone and decided who would move to the next step of the appointment process.

63        Consistent with standard practice, the department’s human resources branch developed the JOA based on the duties in the position’s description. The SG-6 position supervises SG-5 and SG-4 inspectors. The incumbent is required to manage the budget and the staff for delivering the pesticides compliance program. It involves providing advice and guidance to staff in the enforcement of the Pest Control Products Act (S.C. 2002, c. 28) and the Agriculture and Agri-Food Administrative Monetary Penalties Act (S.C. 1995, c. 40) as well as working with other departments and levels of government. The ability to develop an effective regulatory approach for pesticide compliance is crucial to the position.

64        The rating guide for the SG-6 position was reviewed by the department’s human resources branch and developed before the exam was administered. It set out all education requirements and set out that the pass mark for all the other qualifications was 60%. The candidates needed to achieve 6 out of 10 on each of questions 3 and 4 to pass the first ability requirement. The complainant did well on the knowledge requirements but did not pass the first ability requirement.

65        Candidates who did not receive a pass mark for all knowledge and ability requirements were eliminated from the process. The complainant took issue with the fact that the expected answer and assessment criteria considered “[a]ny other answers deemed acceptable by the board”. Mr. Mori explained that that allowed the assessment board to consider valid alternate answers as it is impossible to anticipate every single acceptable answer. The assessment board did not want to exclude anyone with a potentially correct answer.

66        Mr. Mori explained that question 3 required candidates to respond to a question from a distributor on a compliance issue, which required developing a compliance plan. Information gathering is required; so is arranging a visit from an inspector to ensure that appropriate action is taken because it is illegal to import a product that is not registered.

67        Question 4 related to points 2 and 6 of the JOA. The candidates had to demonstrate their knowledge of other levels of government that should be involved in the described scenario as well as other departments and regulatory agencies. Generally, other regulators would not become involved unless a serious problem arises. The candidates were expected to demonstrate the importance of maintaining relationships with partner organizations. They had to demonstrate that they recognized the seriousness of the situation and that they would take direct action. When a complaint is received, there is always a possibility that it could attract the media, but on the other hand is the importance of not abusing partners in a way that would negatively impact those relationships. The candidates were expected to demonstrate that knowledge and the sensitivity of the need to maintain that delicate balance. The rating guide indicated that that was to be looked for.

68        Mr. Mori corrected the complainant’s exam, which was entered as Exhibit C-22. The check marks and scores are his. Three copies of all the exams were made, one as a clean copy, one for Mr. Fancy, and one for Mr. Mori. Only two persons marked the exams. Ms. Peggy Farnsworth did not participate. It is standard practice to have two persons on the assessment board. Ms. Farnsworth participated only in the right-fit exercise and in reviewing the materials used to assess the candidates. Her comments on the tools used to assess the candidates were insignificant.

69        For question 3, the complainant received 4 out of 10. Although she discussed information gathering and asking the right questions, she referenced crops when the question related to bed bugs. None of the actions was discussed in terms of speaking with the inspector before arranging a visit and the approach to be taken in respect of the directive and the policy. In Mr. Mori’s view, the complainant’s answer met the criterion “captures some of the points but some weaknesses were noticeable”.

70        For question 4, he awarded the complainant 5 out of 10 for identifying the fact that the depletion described in the question might not have been entirely due to pesticides and that she would find other partners who could assist her. However, she did not mention regional or national roles. She captured some of the points, but there were noticeable weaknesses. The incumbent of this position would be expected to recognize and develop the approach, the consultation with the national partner, and the need to engage in joint investigations and inspections, and so on.

71        Mr. Fancy marked the complainant’s exam independently and gave her 5 out of 10 for question 3 and 4 out of 10 for question 4. He and Mr. Mori discussed their marks. The result appears in the assessment board’s report. Mr. Mori recognized Mr. Fancy as the expert in the area. They disagreed on the scores for questions 1 and 2. For question 1, Mr. Mori marked the complainant at 6 out of 10, but Mr. Fancy marked her at 10 out of 10. Mr. Mori felt the answer was incomplete, but because Mr. Fancy had more experience in that area, he deferred to Mr. Fancy’s assessment, which he did for all the candidates’ answers to all the questions.

72        For questions 3 and 4, there was not much discrepancy in their assessments of the complainant’s answer. They agreed that question 3 warranted 4 out of 10 and that question 4 warranted 5 out of 10. Her answer to question 4 was better than the one for question 3 in meeting the requirements. Only 3 candidates out of 18 passed the exam.

73        Mr. Mori conducted an informal discussion with the complainant by phone and provided her with the exam questions she had failed. He went over questions 1 and 2 and told her the marks. He did the same for questions 3 and 4 and explained why she received the marks she did. She asked about the appointee, who he confirmed had passed the exam. No questions were asked about the assessment board’s composition. That board fully assessed Ms. Walker using the same rating guide, and she was found fully qualified.

74        The respondent called Mr. Fancy, the section head of the department’s Compliance Program Operations. His position is classified SG-7. He explained that his director general volunteered him to be an assessor in the appointment process at issue. He had never met Mr. Mori and had no prior awareness of the complainant. He and Ms. Farnsworth were involved in reviewing the SOMC and the rating guide. Their respective comments were neither substantive nor significant. His assistant and Marla Kirk, Mr. Mori’s executive administrative assistant, administered the exam. Once all the exams were scanned into PDF documents, Ms. Kirk forwarded them to him.

75        Mr. Fancy sent Mr. Mori the results of his assessments, which they discussed via teleconference. They went over each question to make sure that their assessment was in line with the rating guide and that they were consistent in their approaches. They tried to reach a consensus on all marks. As for the complainant, Mr. Fancy had awarded her slightly higher marks than Mr. Mori had done for questions 1 and 2, but for the other two questions, they were close, awarding 4 and 5 out of 10.

76        The SOMC required a demonstrated ability to develop a regulatory approach, which was tested in questions 3 and 4. They are operational questions, which are normally seen in the pest management world. They required demonstrating legislative knowledge and how to deal with provincial requirements. The complainant’s answer to question 3 did not deal with the product referred to. The question mentioned that deaths had occurred, related to the use of certain products, which required the candidates to demonstrate risk assessment to ensure safety. The question was about using bed-bug products inside the home, yet the complainant discussed the products used on crops, which did not align with the scenario presented. She provided little detail in terms of the steps to be taken, such as a pre-consultation and the costs.

77        Question 4 dealt with a fisherman complaining about pesticide on an adjoining farm. A number of organizations were identified. The biggest concern when dealing with a complaint is to avoid involving too many organizations. The department has a role to play to ascertain whether non-compliance has occurred and whether it is necessary to involve other levels of government. Candidates were expected to explain why they would involve those other levels. The appointee met the screening criteria and received good marks on the first three questions. However, like some others, she had difficulties with the last question. The last two were ability questions, and the candidates had to receive 6 out of 10 on each of the two questions to pass.

78        In cross-examination, Mr. Fancy stated the exam was designed to test the ability to address a non-compliance situation. The intention was to ensure that the candidate understood the associated risks and that those risks were properly assessed and addressed. The exam was designed to identify the best candidates.

79        The appointment process began with 19 candidates. Three or four pulled out or did not write the exam. Three candidates were successful and were added to the pool of qualified candidates. The screening-in criteria was loose, but the exam marking was strict. Mr. Fancy did not consider the possibility that the questions were too difficult because three candidates passed the exam, which justified pursuing the appointment process. Although the complainant alleged that the assessment board gave the appointee overly generous marks on the exam, at the hearing she did not ask either Mr. Mori or Mr. Fancy any questions about the appointee’s exam. I have no evidence before me that the appointee’s exam was unfairly marked; all I have is the complainant’s bare assertion.

80        The PSST considered many cases in which a complainant challenged an assessment board’s assessment of his or her candidacy. The PSEA does not authorize the Board to assess candidates for appointment. This authority is granted to the PSC under s. 30(2)(a) and may be delegated to deputy heads in accordance with s. 15(1). Section 36 provides considerable latitude when determining the assessment methods to be used in an appointment process (see, for example, Visca v. Deputy Minister of Justice, 2007 PSST 24 at paras. 51 to 53). However, it is not unfettered. As noted in Tibbs, discretion in staffing processes must be exercised in accordance with the nature and purpose of the PSEA. It is held in check by the PSEA’s guiding principles, which recognize that the Government of Canada is committed to fair and transparent employment practices.

81        Rather, the Board determines whether the evidence demonstrates that on a balance of probabilities, abuse of authority occurred in the assessment (see, for example, Canada (Attorney General) v. Lahlali, 2012 FC 601, at paras. 42 to 46). Although an allegation of harassment perpetrated by one of the assessors could be a factor in determining whether an abuse of authority occurred, such harassment by the assessor must be proven.

82        To establish bias, it is not necessary that actual bias is found. A reasonable apprehension of bias may constitute abuse of authority. The PSST and the Board have applied the reasonable apprehension of bias test in many staffing cases involving allegations of bias. (See, for example, Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10, which adapted the test set out in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394, and Baker v. Deputy Minister of Public Works and Government Services, 2015 PSLREB 19.) In Gignac, the PSST stated as follows at para. 74: “If a relatively informed bystander can reasonably perceive bias on the part of one or more persons responsible for assessment, the Tribunal can conclude that abuse of authority exists.” The burden of demonstrating the existence of bias or of a reasonable apprehension of bias rests on the person alleging the bias. A real likelihood or probability of bias must be demonstrated. Mere suspicion is not sufficient; see R. v. S. (R.D.), [1997] 3 S.C.R. 484 at para. 112; and Arthur v. Canada (Attorney General), 2001 FCA 223 at para. 8.

83        Therefore, I must determine whether a reasonably informed bystander could reasonably perceive bias on the part of Mr. Mori in the assessment of the complainant’s exam. Although he was aware of the complainant’s grievances and allegations of harassment, they were not against him per se. The fact of presenting a grievance or a complaint is insufficient in itself to give rise to a reasonable apprehension of bias. (See Saunders v. Deputy Minister of National Defence, 2014 PSST 13 at para 39.) Moreover, the assessment board was composed of three individuals, two of whom had no prior knowledge of the complainant.

84        The complainant has not established that Mr. Mori exercised his authority in a partial or biased manner. To the contrary, the evidence established that all candidates were assessed consistently and fairly and that when a disparity arose between the board members’ assessments, Mr. Mori deferred to Mr. Fancy, who was the subject-matter expert and had no preconceived impression of the complainant. Mr. Fancy’s explanations for why he gave the complainant a failing mark on each of questions 3 and 4 are imminently reasonable. On the facts before me, I find that the complainant has not proven that a reasonably informed bystander would reasonably perceive bias on the part of the assessment board in the assessment of the complainant’s exam. 

85        Therefore, I find that the complainant has not met her onus of establishing an apprehension of bias or bias by the respondent in its assessment of the complainant’s exam.

C. Issue III - When assessing the complainant, did the respondent discriminate against her on a prohibited ground, in violation of the CHRA?

86        The complainant alleged that the true reason she failed questions 3 and 4 of the written exam was that she suffered from anxiety, panic attacks, and stress-related illnesses, which she suffered as a result of the harassment and discrimination she was subjected to in the workplace. She was also a single parent caring for a young child and an aging parent.

87        Her health has been forever changed. She is hurt and feels like a failure. Because of this, she feels like less of a person. Management accused her of faking her illness and thought she was crazy and neurotic. It believed she created all her problems.

88        In cross-examination, the complainant stated that management denied her request for accommodation to breastfeed her child, whom she had decided to nurse until the age of three, and to care for an aging parent. Management did not like single parents. It would designate positions as “female”. Racially visible minorities and females were treated differently. Her manager and supervisor did not have children. She did not pass the exam for those reasons.

89        Ms. Deol was not aware of whether certain persons had been intentionally excluded from acting opportunities. She did not know whether persons with disabilities were ever promoted. She was not aware of how Mr. Mori treated the complainant. She stated that he is friendly to staff but that he is reserved and quiet. She recalled being able to use leave for family related responsibilities and that she was not questioned on it. Although she used to be allowed to occasionally work from home, Ms. Sealling put an end to it. She did not file a formal complaint.

90        Mr. Lee was appreciative of the fact that he had a compressed day off. Mr. Shelley as the manager decided telework requests. Mr. Lee doubts that telework would be regularly approved. Mr. Lee has had very little direct contact with Mr. Mori as there is no direct responsibility with the level of work that he deals with. He did not recall the respondent offering harassment or discrimination training. There has been no harassment training in the department since 2008.

91        According to Mr. Mori, all the candidates’ assessments, including the complainant’s, were made based on merit and the right fit. The complainant’s discrimination allegations and of being treated differently in the workplace after having a child were news to him. He was unaware of any disability she might have had. She never requested accommodation for any disability.

92        In cross-examination, Mr. Mori stated that he was not aware of any harassment grievances or complaints. However, he recalled a meeting with the complainant in which she requested to discuss occupational health and safety issues. He informed her that she should bring it up with Mr. Shelley, her line manager. He recalled her complaining that Ms. Sealling had students paint her toenails in the office, but he did not recall it being conveyed as harassment.

93        Still in cross-examination, Mr. Mori recalled an email exchange with the complainant about Mr. Shelley and his refusal to meet with her. He remembered that she had had a meltdown or anxiety attack in Mr. Shelley’s office and that she had to be escorted home by another member of staff before going on sick leave for several years. He had a vague memory of a grievance she filed in 2006 about harassment involving Mr. Shelley and his request that she obtain a medical certificate from her psychologist certifying that she could not have direct contact with him and that this was a bona fide accommodation.

94        Section 80 of the PSEA provides that when determining whether a complaint is substantiated under s. 77, the Board may interpret and apply the CHRA.

95        As the complainant alleged that she had suffered discrimination defined under the CHRA, she was obligated to advise the Canadian Human Rights Commission of her complaint as required by s. 78 of the PSEA. On February 24, 2014, it advised that it did not intend to make submissions on this matter.

96        Section 7 of the CHRA makes it a discriminatory practice to directly or indirectly refuse to employ or continue to employ any individual or, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Section 3 lists the prohibited grounds of discrimination, which include disability, and family status.

97        In the human rights context, the complainant has the onus to prove a prima facie case of discrimination. In Ont. (Human Rights Comm.) v. Simpsons-Sears, [1985] 2 S.C.R. 536 (known as the O’Malley decision), the Supreme Court of Canada sets out the test for establishing a prima facie case of discrimination as follows (at para. 28):

…The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer…

98        The complainant need only show that the alleged discrimination was one of the factors, not the sole or even the main factor, in the respondent’s decision not to select her in this appointment process for a prima facie case to be met. (See Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12, at para. 7 (F.C.A.).)

99        If the complainant establishes a prima facie case of discrimination, the onus shifts to the respondent to provide a reasonable non-discriminatory explanation for its actions.

100        The complainant’s arguments in support of her discrimination allegations based on disability and family status are based on her assertion that she suffered from anxiety, panic attacks, and stress-related illnesses because of the harassment she suffered in the workplace and the fact that she was a single parent caring for a young child and an aging parent.

101        While the Board can accord weight to the complainant’s belief, as the Canadian Human Rights Tribunal (CHRT) has stated, “an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough.” (See Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, at para. 41; application for judicial review dismissed: 2006 FC 785.)

102        In the case before me, there was no fact to confirm the complainant’s belief that her disability and/or family status constituted a factor in the respondent’s decision to eliminate her from the appointment process. There is insufficient evidence to establish a prima facie case of discrimination. Therefore, I conclude that the complainant has not proven that the respondent discriminated against her in this appointment process.

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

III. Order

104        The complaint is dismissed.

February 16, 2018.