FPSLREB Decisions

Heard at Québec, Quebec,
December 12 and 13, 2017.
(FPSLREB Translation)

REASONS FOR DECISION

Introduction

1        Jean Beaudoin (“the complainant”) applied for a governance advisor position, classified at the PM-05 group and level, with the Department of Indian and Northern Affairs (INAC) (when the job was posted, the department was called Aboriginal Affairs and Northern Development Canada) in Québec, Quebec. He was screened out at the written exam stage. He maintained that INAC’s deputy minister (“the respondent”) abused its discretionary authority by improperly screening him out for a reason unrelated to the staffing process. He defined himself as a whistleblower, which, according to him, is why the respondent screened him out. He also maintained that the respondent acted on inadequate material, namely, inaccurate assessment tools, to screen him out. Finally, he alleged that the respondent discriminated against him based on his age.

2        The respondent denied abusing its authority in the context of the appointment process and of assessing the complainant’s qualifications. It maintained that the assessment tools were adequate and that he was not a victim of discrimination.

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

4        For reasons that will be set out, the complaint is dismissed. The complainant did not demonstrate that the respondent abused its authority in the context of the appointment process.

Background

5        On March 31, 2014, the respondent launched an internal appointment process to staff five similar positions classified at the PM-05 group and level in Québec, Quebec. The positions were open to employees occupying positions in the Quebec region, including the national capital area. The complainant applied.

6        As part of the process, first, CVs were reviewed to assess education and essential qualifications related to experience. A written communications test from the PSC’s Personnel Psychology Centre came next, followed by a written exam to assess several essential skills-related qualifications. The complainant was initially screened out at the preselection stage because he did not possess the educational qualification. Nevertheless, following an exchange the parties had on this issue, the respondent decided to reinstate him in the process.

7        As for the written exam, the complainant failed the question on the essential qualification of the ability to manage financial resources. After the exam, the assessment board found that he did not possess that essential qualification, and he was eliminated.

8        At the end of the selection process, qualified candidates were added to candidate pools that were then used for several appointments.

9        A “Notification of Appointment or Proposal of Appointment” was issued on November 10, 2014, announcing the appointment of Catherine Langlais (“the appointee”). On November 25, 2014, the complainant filed an abuse of authority 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).

10        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 the 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.

Issues

11        The Board must decide the following five questions to determine whether there was an abuse of authority:

1. Did the respondent improperly screen out the complainant for a reason unrelated to the staffing process?
2. Did the respondent improperly screen out the complainant at the preselection stage before reinstating him in the process?
3. Did the respondent use deficient or inaccurate assessment tools?
4. Did the respondent incorrectly assess one of the complainant’s responses?
5. Did the respondent screen out the complainant in a discriminatory manner?

Analysis

12        Section 77(1) of the PSEA provides that a person in the area of recourse may file a complaint with the Board that he or she was not appointed or proposed for appointment by reason of an abuse of authority. As indicated in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 66, “... abuse of authority will always include improper conduct, but the degree to which the conduct is improper may determine whether or not it constitutes abuse of authority.” The complainant has the burden of showing on a balance of probabilities that there was abuse of authority.

Issue 1: Did the respondent improperly screen out the complainant for a reason unrelated to the staffing process?

13        The complainant testified at the hearing. He also called members of the staffing process assessment board to testify, namely, Anick Giguère, Manager, Employment, Youth, and Education; Marie-Claude Leclerc, retired, formerly Manager, Capacity Development and Governance; Pierrette Gourde, Manager, Funding Arrangements; and Marc Langlois, retired, formerly Manager, Funding Services Branch. Camil Simard, Director, Negotiation, Governance and Individual Affairs, was also called to testify for the respondent.

14        The complainant explained that he began his federal public service career in 1988. He held several positions over the years. From 2008 to 2015, he held a PM-05 manager position with the major fraud section of the Integrity Services Branch, Quebec Region, at Employment and Social Development Canada (ESDC). He retired from the federal public service on June 1, 2015, because he had been a victim of psychological harassment at work.

15        In his testimony, the complainant made a detailed account of what occurred before he retired. According to him, he suffered reprisals because he was a public servant who disclosed wrongdoing or, in his words, was a whistleblower. He took pains to explain why, according to him, the respondent screened him out because of his whistleblower role.

16        He explained that the psychological harassment of which he had been a victim when he retired had started in 2009. At that time, he was involved in a conflict with a colleague, and he complained about it to his director, who then travelled from Ottawa to Québec to deal with the problem. According to the complainant, she ultimately held him responsible for the conflict; he was in tears after meeting with her. His problems with his supervisor then worsened, and he required counselling.

17        At his request, a conflict management process was initiated. It lasted a year. Two coaches guided the complainant and his director so that they could resolve their conflict, but to no avail. The complainant stated that his director listened in on one of his telephone conversations without his knowledge when he addressed his team as its manager. She subsequently denigrated him. When he found out, he informed the two coaches, who told him that it had been inappropriate and recommended that he inform the management of the ESDC’s Integrity Branch, which he did. He said that senior management then advised all managers in the department that it was inappropriate to listen in on anyone’s telephone conversation without his or her knowledge.

18        In light of all that, on November 8, 2011, the complainant filed an official harassment complaint against his director. He explained that his state of health was deteriorating. A psychologist was following his case, and he was on depression medication. According to him, his harassment complaint was handled in a questionable way. He found it suspicious that his director was promoted to another position. He explained that he had also noticed more and more indications of suspicious activities in his department.

19        For example, he became aware that a senior official in his department was not enforcing a Service Canada program, which was the Continuous Improvement program initiated by the Service Canada’s senior director. Therefore, he decided that it was appropriate to inform Service Canada’s senior director about it. He emphasized that she thanked him for bringing the matter to her attention. He explained that continuous improvement was also his responsibility.

20        The complainant emphasized that he then became a victim of reprisals by representatives of his department, ESDC. In support of this allegation, he stated that his position was affected during a 2012 workforce adjustment.

21        The complainant also stated that in the summer of 2012, his employer refused to grant his vacation request. He and his family had purchased a vacation package at Disney World in Florida, and thus, he was unable to accompany his family on the trip.

22        The complainant made it clear that he was not represented by a bargaining agent because he had been in a management position. Yet, because of the problems he was encountering at work, he appealed to a former union representative from INAC known to him and his wife; she works at INAC. The former union representative agreed to help him and to guide him in his action against ESDC. According to the complainant, it is possible that his new ally discussed his thorny situation with his INAC colleagues and that INAC employees had heard about the complainant before he applied for the PM-05 position there.

23        The complainant explained that he then filed a complaint with the Public Sector Integrity Commissioner about a presumed improper use of public funds by ESDC during the workforce adjustment period. The Commissioner decided not to investigate the complaint.

24        The complainant then took the initiative to draft a report to highlight, among other things, employees’ dissatisfaction in his department, ESDC, following Statistics Canada’s 2011 federal public service employee satisfaction survey. Among other things, his report emphasized the dissatisfaction of employees in his branch, the Integrity Branch. He explained that this work was connected to his duties as the branch’s services manager.

25        On April 4, 2013, a disciplinary measure was imposed on the complainant because by drafting this report, he had exceeded his mandate. According to him, it is possible that people at INAC, where he had applied, had heard about his critical report.

26        On April 8, 2013, the complainant filed a grievance about the disciplinary measure that had been imposed on him. He also filed a grievance about his employer’s (ESDC’s) decision to deny his vacation request in summer 2012 and about a note dated March 7, 2013.

27        In the same vein, the complainant asked the Auditor General of Canada to investigate a declaration of a senior ESDC representative in the House of Commons. The complainant believed that the declaration was inaccurate, and he wanted the Auditor General to take stock of the issue.

28        The complainant stated that from 2013 on, his work situation became more and more difficult and that as a result, he went on sick leave.

29        He explained that he tried to find another job, given the turmoil he was experiencing at work, but that it had been in vain. He did not want to take early retirement. He emphasized that he made many attempts to find a new job in his and other public service departments, always without success. He said that from September to the end of December 2013, he applied to about 100 public service positions. Despite all his efforts, his job search did not bear fruit. In addition, during the workforce adjustment period, he tried to alternate jobs with someone else but did not succeed.

30        On April 19, 2014, he applied to the PM-05 position at INAC. Before applying, he contacted Ms. Gourde, a manager and assessment board member, to ask whether INAC could offer him a transfer to one of the posted PM-05 positions. Ms. Gourde replied that she could not because INAC’s goal was to allow the largest possible number of candidates to apply and to create a pool from which to fill several positions classified PM-05.

31        At the beginning of 2014, the complainant obtained a medical certificate from his doctor stating that he was fit to return to work on the condition that he change his workplace. Health Canada then also assessed his health and found that he could no longer work with two of the people in his work environment.

32        In the spring of 2014, the complainant returned to work. The two people that Health Canada had mentioned were no longer there. Still, he was unable to stay there for more than a day, and he opted for leave without pay.

33        On July 29, 2014, the complainant wrote the exam for the staffing process at issue.

34        On September 5, 2014, the respondent informed the complainant that he was screened out given that on the written exam, he had not met the criteria on the ability to manage financial resources.

35        During the same period, the complainant feared that his employer might accumulate disciplinary measures against him, with the aim of firing him. He confided in his doctor since he felt that he was no longer able to work in his workplace. The doctor supported him. Before taking early retirement, the complainant asked his department’s deputy minister and the Clerk of the Privy Council to help him find another job. No assistance was offered to him.

36        On June 1, 2015, the complainant took early retirement.

37        The complainant firmly believes that malicious gossip about him influenced the respondent’s decision to screen him out of the staffing process.

38        The four members of the assessment board and the manager with delegated responsibility for the process testified at the hearing. They stated that the complainant’s denunciations had nothing to do with the rejection of his candidature. In addition, they stated that they had not heard of his denunciations.

39        Ms. Gourde, an assessment board member, confirmed that the complainant had contacted her in 2014, when he became aware of the job opportunity posting. He then asked her if INAC could offer him a transfer from his position to one of those posted. She replied that she could not because the department’s goal was to allow the largest possible number of candidates to apply and to create a pool of candidates to fill several positions.

40        As for Ms. Giguère, she chaired the assessment board during the appointment process in dispute. She stated that the process had been launched to fill five similar positions, classified at the PM-05 group and level, in Québec, as follows: (i) senior officer, funding agreements; (ii) governance advisor; (iii) senior advisor, education; (iv) senior advisor, social development; and (v) advisor, audits and corrective action plans. A pool of candidates was also supposed to be established to staff similar positions.

41        At the start of the process, Ms. Giguère and the three other managers on the board, Ms. Gourde, Ms. Leclerc, and Mr. Langlois, jointly designed the skills assessment exam. The board members also designed the scoring guide and chose the weighting to assign to each question before the exam was administered. Ms. Giguère stated that a human resources representative reviewed all the tools designed and used in the process, including the exam and the scoring guide.

42        On July 29, 2014, the complainant wrote the written exam, which was to assess the following qualifications: the ability to analyze a complex situation and develop a recommendation to management, and the ability to manage financial resources.

43        The first exam question, which assessed the qualification of the ability to analyze a complex situation and develop a recommendation to management, included a scenario. The qualification was assessed in two parts, first through a written exam and, for the candidates who passed it, through an interview. The complainant obtained a mark of 2 for his answer to this question. Had he been invited to an interview, then that mark would have been added to the interview mark.

44        Questions 2 and 3 of the exam assessed the qualification of the ability to manage financial resources. The answer to question 2 represented 30% of the total mark for this qualification, and the answer to question 3 represented 70% of it. It was intended that candidates who did not achieve a passing mark for this essential qualification would not be invited to the interview.

45        The complainant obtained a result of 4 out of 7 for question 2, and 2 out of 7 for question 3. As he did not obtain a passing mark for that qualification (the ability to manage financial resources), he was not invited to the interview.

46        With respect to question 2, which involved a calculation, the complainant’s result was close to what the respondent was looking for, but it was not exact.
With respect to question 3, Ms. Leclerc explained that the scoring guide included 10 factors that the candidates could consider in their answers, the 10th being any other relevant answer. The complainant raised only three factors in his answer. Specifically, the board noted that he had addressed factors 1, 4, and 7 of the scoring guide, but not the others. Mr. Langlois added at the hearing that the complainant’s answer to this question had been mediocre and that it had contained few of the elements sought.

47        Since he did not receive a passing mark for this qualification, the complainant was eliminated from the process. After he was informed that he had not met one of the essential qualifications assessed in the exam, he asked to see certain documents. On October 15, 2014, Mr. Langlois informed him of the following:

[Translation]

...

In response to your email below, I am informing you that we cannot circulate copies of the exam questions and the marking, not even of your exam, because the process has not been completed, and this exam will be used in other staffing processes.

Nevertheless, we can have an informal discussion with you about your written answers to questions 2 and 3, measuring the “Ability to manage financial resources”. Those two questions were complementary, to obtain a final and eliminatory mark in this competition. Question 2 counted for 30%, and question 3 for 70%. For question 2, your result was 4/7, and 2/7 for question 3, and your combined final mark for these two questions was 2.8/7.

...

Please let me know if you would like an informal discussion about your written exam results.

...

48        According to the calculation based on the percentages, the complainant’s final mark should have been 2.6 out of 7 and not 2.8 out of 7, given that 30% of 4 is 1.2 and that 70% of 2 is 1.4 (for a total of 2.6). However, this error is insignificant. The pass mark for this qualification was 4 out of 7.

49        Ms. Giguère explained that the weighting did not change according to the positions to be filled. The exam was used to assess a common core of knowledge required by all candidates to hold a PM-05 position. A candidate met the merit criteria if he or she possessed both the essential qualifications necessary for performing the work and any other qualification that constituted an asset with respect to the work or for the organization.

50        Ms. Giguère also explained that three members of the selection board did not know the complainant. As for the fourth member, when the board received the complainant’s request for reinstatement to the process, Ms. Leclerc mentioned to the other members that she had taken two or three courses at the University of Public Administration (ENAP) with the complainant in 2001 or 2002, which was a dozen years before. At the hearing, Ms. Leclerc did not specifically recall sharing that information with her colleagues in 2014. Nevertheless, Ms. Giguère and Ms. Gourde confirmed that they heard her say that she had taken courses with the complainant in the early 2000s.

51        Finally, at the hearing, Ms. Leclerc stated that she did not know the complainant well and that she did not know that over the course of his career, he had spoken out about things in the public service that he felt were reprehensible.

52        Mr. Simard explained that the respondent had delegated to him the authority to appoint the appointee who was the subject of the complaint. At the end of the process, the assessment board recommended to him that the person be appointed. After assuring himself that that person possessed all the merit criteria, Mr. Simard approved the appointment.

53        According to the complainant, he was excluded from the staffing process because of his reputation, and consequently, another person was appointed to the position he sought.

54        He stated that the Public Service Staffing Tribunal (PSST) listed five categories of abuse of authority in Tibbs, including the following: “When a delegate exercises his/her/its discretion with an improper intention in mind (including acting for an unauthorized purpose, in bad faith, or on irrelevant considerations).”

55        According to the complainant, the respondent had the improper intention of excluding him from the staffing process because he is a whistleblower. According to him, he was subject to reprisals because in the past, he had identified issues of abuse and impropriety. In his testimony, he described in detail the complaints, denunciations, and allegations of impropriety he has made.

56        In addition, the complainant stated that given that the former INAC union representative had agreed to help him in his actions against ESDC, a link was established between him and INAC, where he had applied. He alleged that INAC employees had probably heard about him, as the union representative was well known in the workplace. According to him, that link between him and the respondent is proof that the assessment board was contaminated.

57        The complainant also mentioned a link between the impropriety he had denounced to the Senior Director of Service Canada and INAC, given that Service Canada serves all departments and that the Service Canada Senior Director’s program applied to INAC. As a result, INAC employees had probably heard that he had alerted the Senior Director that some people were not enforcing her program.

58        The complainant maintained that the respondent acted illegitimately and irregularly by unduly excluding him from the process and that as a result, it was an abuse of authority, as defined by Federal Court Justice de Montigny in Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 37 to 40. The complainant also referred me to Marcil v. Deputy Minister of Transport, Infrastructure and Communities, 2011 PSST 31 at para. 30, in which the PSST emphasized that abuse of authority can be caused by certain errors, omissions, and improper conduct.

59        According to the complainant, as in Marcil, he had denounced improprieties. According to him, a reasonable and informed observer, after examining the whole of the process and in particular the assessment board members’ roles, would conclude that there had been abuse of authority. Specifically, the complainant in Marcil alleged thatthe assessment board members saw him as a troublemaker and that they had punished him for a denunciation. In that case, the PSST found that a reasonable and informed observer would not have concluded that the assessment board members had had a reasonable fear of favouritism; the complainant in this case maintains that his case is different and that there was abuse of authority.

60        Finally, the complainant stated that his freedom of expression, protected under the Canadian Charter of Rights and Freedoms,was infringed because in his answer to question 3 of the exam, he expressed personal opinions that the assessment board deemed inappropriate. Thus, according to him, he should be granted damages under the Charter if his complaint is allowed. He clarified that given that he is retired, he does not wish to be reassessed and does not ask that the process be repeated. Nevertheless, according to him, it is time to protect and compensate whistleblowing public servants who try to denounce inappropriate uses of public funds.

61        First, the respondent stated that although the complainant characterizes himself a whistleblower, the assessment board did not know of that characteristic. Three assessment board members confirmed that they did not know the complainant at the time of the process. As for Ms. Leclerc, she confirmed that she had taken two or three courses with him a dozen years earlier but that she did not know more about him. The board assessed all the candidates the same way, according to defined selection criteria and a common frame of reference. It emphasized that the complainant simply did not answer the exam questions correctly. Although he disagreed with the established indicators and the results, the method used was not unfair.

62        Second, the respondent stated that there is no evidence that the former INAC union representative or other people who knew him contacted the assessment board members to talk about the complainant. The former representative did not participate in the selection process. Similarly, there is no evidence that the assessment board members got wind of exchanges that Service Canada’s senior director had had with the complainant.

63        Third, the respondent stated that the hearing stage is too late to file a Canadian Charter of Rights and Freedoms challenge, given that neither the complaint nor the complainant’s allegations mentioned it. In any event, his answer to question 3 of the exam was assessed in accordance with a pre-established scoring guide, and no one prevented him from denouncing improprieties.

64        In response, the complainant stated that I should doubt the assessment board members’ credibility and not give weight to their testimonies given that at the hearing, they might simply have denied hearing about him before rejecting his candidature.

65        In view of the evidence and the law, I find that the complainant did not demonstrate that the respondent improperly rejected his candidature for a reason unrelated to the staffing process. Instead, the evidence demonstrated that he was assessed in accordance with established merit criteria for the positions to be filled. As for the exam, he did not meet the qualification of the ability to manage financial resources, which is why he was excluded from the process.

66        Specifically, the exam and the scoring guide enabled assessing how candidates met the merit criteria specified in the job opportunity advertisement. The scoring guide clearly defined the indicators of success or failure in the answers. The complainant’s answers to questions 2 and 3 were incorrect or incomplete. Ultimately, he obtained a mark of 2.6 out of 7 for the qualification of the ability to manage financial resources. That result was below the passing mark required for the assessed qualification, and as a result, he was eliminated from the process. He was not eliminated because he is a whistleblower.

67        Moreover, in my view, there is no reason to doubt the assessment board members’ credibility. I am reassured by their obviously sincere and direct testimony. They provided a detailed description of the course of the decision-making process, and in my view, they were credible witnesses.

68        Finally, the complainant did not raise his Canadian Charter of Rights and Freedoms allegation during the written submissions process, and he submitted it for the first time on the day of the hearing. The general rule is that it is inadmissible to raise new allegations at a hearing, except in exceptional circumstances. In sum, before considering whether to allow the new allegation, the potential prejudice to the other party, which was unable to file evidence in response to the new allegation, must be taken into account.

69        The terms on amending or submitting a new allegation are set out in s. 23 of the Public Service Staffing Complaints Regulations (SOR/2006-6). Section 23(1) specifies that the amendment or addition must result from information that could not reasonably have been obtained before the complainant submitted his or her original allegations.

70        In this case, the complainant did not demonstrate that his new allegation flows from information that could not reasonably have been obtained before he submitted his original allegations. For those reasons, I will not consider the new allegation based on the Charter.

71        In any event, nothing in the file reveals how the comments that an assessment board member wrote on the copy of the complainant’s corrected exam affected or limited his freedom of expression. Yet, without that, there cannot be a Charter violation.

72        Therefore, I find that the complainant did not demonstrate that the respondent improperly rejected his candidature for a reason unrelated to the staffing process.

Issue 2: Did the respondent improperly screen out the complainant at the preselection stage before reinstating him in the process? 

73        At the hearing, the complainant stated that the respondent had also acted improperly when it screened him out at the preselection stage before reinstating him in the process.

74        The evidence showed that the complainant was eliminated from the process at the preselection stage because he did not demonstrate that he held a bachelor’s degree from a recognized university. Nevertheless, he holds a master’s degree. According to him, the respondent failed to give due weight to that degree and did not seriously review the merit criteria.

75        Ms. Giguère explained that the complainant was first screened out at the preselection stage because it was not clear that he met the educational criteria, namely, holding a bachelor’s degree from a recognized university. He mentioned in his CV that he held a master’s degree, not a bachelor’s degree. Nevertheless, he asked to be reinstated in the selection process because his master’s was equal to or superior to a bachelor’s.

76        A Human Resources Advisor with the respondent then took steps to verify whether the respondent could establish equivalence and contacted the post-secondary education branch of the department of education. Finally, a Strategic Advisor from the PSC informed the Advisor that equivalence was not automatically granted but that the manager had to determine whether the higher level of education met the requirements of the position to be filled.

77        The assessment board carried out that analysis and decided to reinstate the complainant in the process. Thus, on July 10, 2014, he was invited to participate in the public service’s Written Communication Test (WCT-345), at which stage he was successful.

78        The respondent maintained that it acted correctly when after the informal discussion, it decided to reinstate the complainant in the process.

79        Section 47 of the PSEA provides as follows that a candidate can request an informal discussion when he or she has been eliminated from consideration in an internal appointment process:

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

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

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

81        In this case, I note that the respondent respected the spirit of s. 47 of the PSEA and that it did not act improperly, as the complainant claims. It agreed to reinstate him in the process after assessing the field in which he had obtained his master’s. The fact that his view is that he should not have been eliminated from the process in the first place at the preselection stage does not mean there was abuse of authority.

82        Therefore, I find that the complainant did not demonstrate that the respondent improperly screened him out at the preselection stage before reinstating him in the process.

Issue 3: Did the respondent use deficient or inaccurate assessment tools?

(i) Did adopting a generic job description make the assessment tools deficient or inaccurate?

83        The complainant referred me to Tibbs and emphasized that it mentions another category of abuse of authority, as follows: “When a delegate acts on inadequate material (including where there is no evidence, or without considering relevant matters).”

84        According to the complainant, the tools for assessing the candidates, which were the statement of merit criteria, the exam, and the scoring guide, were deficient or inaccurate given that the job description of positions classified PM-05 was amended during the staffing process. Therefore, according to him, the respondent’s decision to reject his candidature was not based on relevant factors.

85        During the staffing process, which began in April 2014 and spanned several months, a generic job description for PM-05 positions was finalized. Among other things, the new job description replaced the old job description for the advisor, governance (strategic section) position. A document adduced as evidence showed that on July 28, 2014, Ms. Leclerc authorized the new job description version for a regional advisor, program development, governance and capacity development position.

86        The complainant wrote his exam the next day, on July 29, 2014.

87        The complainant maintained that the respondent could not assess the candidates by considering the statement of merit criteria established at the beginning of the staffing process since its criteria reflected the old job description. According to him, the tools should have been amended to reflect the new generic job description.

88        The complainant maintained that in Jolin v. Deputy Head of Service Canada, 2007 PSST 11 at para. 37, the PSST confirmed as follows that abuse of authority occurs when a deficient assessment method is chosen even if the subsequent assessment using that method can appear completely impartial:

Excluding the choice and use of the method for assessing the person to be appointed from the recourse provided for in paragraph 77(1)(a) would result in an illogical situation that would run counter to the spirit of the legislation. For example, abuse of authority could occur in choosing an assessment method that would unduly favour an individual, or in seeking to harm certain candidates or discriminate against persons on the basis of their sex, age or other prohibited grounds. The resulting assessment, though based on a defective method, might seem completely impartial, but an abuse of authority would have occurred in the choice of method for assessing the person to be appointed. As the Tribunal has stated in Tibbs, supra, Parliament could not have intended to delegate the authority to act in such an outrageous, unreasonable or unacceptable manner.

89        The complainant also stated that it is possible that some candidates used the old job description to prepare for the exam, while others could have used the new job description, in spite of the fact that the assessment tools were developed from the old one. According to him, the process lacked credibility, since a deficient assessment method was chosen.

90        The respondent stated that even though a generic job description was adopted on July 28, one day before the exam was administered, the duties of positions classified PM-05 remained the same. The goal was simply to support a more consistent approach across the country. Therefore, adopting a generic job description did not harm or damage the staffing process. All the candidates were assessed in a fair, equitable, and transparent manner, and the assessment tools used were reliable.

91        It should be noted that s. 36 of the PSEA confers on the deputy head the authority to choose assessment tools. Nevertheless, the ones chosen can give rise to an abuse-of-authority complaint. For example, in Jolin, at para. 37, the PSST listed some types of deficient tools, such as those that would unduly favour certain candidates, seek to harm certain candidates, or discriminate based on prohibited grounds.

92        In this case, there is no evidence that would allow me to find that the merit criteria, the exam, or the scoring guide, which were all tools used in the process, were deficient or inaccurate because the department adopted a generic job description during the summer.

93        Although the complainant questioned the tools used, given the new generic job description, the evidence demonstrated that the duties of positions classified PM-05 have remained the same. The respondent simply adopted a generic job description for PM-05 positions to promote a more consistent approach across the country.

94        Therefore, the assessment tools used assessed the required essential qualifications as well as any other qualification that constituted an asset related to the work, which had not changed. Therefore, I cannot find that the assessment tools were deficient or inaccurate given the adoption of the generic job description. Finally, there is no evidence that would lead me to find that the assessment tools could not be used to correctly assess the merit criteria.

95        Under the circumstances, I find that the complainant did not demonstrate that the respondent used deficient assessment tools to screen him out because a generic job description had been adopted.

(ii) Was an exam question deficient or inadequate because it assessed a task not mentioned in the new generic job description?

96        The complainant made another argument similar to the last one, but he stated it more specifically. He stated that the old job description specifically mentioned the responsibility for managing a budgetary envelope, which is not clearly stated in the new one.

97        Specifically, the complainant questioned establishing the qualification about the ability to manage financial resources because according to him, it does not appear in the new job description. He stated that therefore, one question on the written exam was inadequate because it measured an essential qualification for a position to be filled that no longer required financial resource management knowledge.

98        The respondent emphasized that the aim of the process was to staff the five similar positions classified at the PM-05 group and level that appeared on the job poster. According to it, all the job descriptions for the positions had items related to financial resource management. Based on the job description signed on July 28, 2014, Ms. Leclerc identified at least three responsibilities that include the requirement to manage sums of money.

99        The respondent added that in accordance with Visca v. Deputy Minister of Justice, 2007 PSST 24 at para. 43, managers have all the necessary flexibility to determine the criteria that are most important for a given position at the time of the selection process. In addition, the decision states as follows at paragraph 42:

Broad discretion is given to managers under subsection 30(2) of the PSEA to establish the necessary qualifications for the position they want to staff and to choose the person who not only meets the essential qualifications, but is the right fit....

100         As well, s. 30(2) of the PSEA confers a wide power on the respondent with respect to establishing the qualifications required for the work to be performed. The PSC’s Guide to Implementing the Assessment Policy requires that candidate assessment be designed and implemented without bias, political influence, or personal favouritism and that it not create systemic barriers. It also requires that assessment methods effectively assess essential qualifications and other identified merit criteria and that they be administered fairly.

101         In this case, based on the facts and the law, I draw the following conclusions. I find that several responsibilities that include the duty to manage sums of money form part of the new job description. I note that such responsibilities also formed part of the old job description. I also find that the respondent’s decision to require candidates to possess that qualification was in keeping with s. 30(2) of the PSEA and the PSC’s Guide to Implementing the Assessment Policy.

102         Under the circumstances, I find that the complainant did not demonstrate that the respondent used deficient or inaccurate assessment tools to reject his candidature because a question on the exam was deficient or inadequate.

Issue 4: Did the respondent incorrectly assess one of the complainant’s responses?

103         The complainant stated that the respondent exercised its discretion in bad faith by giving him a very low mark on question 2 of the exam. He added that his answer to that question, which was a mathematical question, was almost perfect but that he received only 4 out of 7 for his honest calculation. Specifically, following his calculation, he answered that the expected reduction was $822 696, while the correct answer was $822 344.

104         The complainant maintained that a reasonable person would find that the excessively harsh correction of his answer has no rational basis.

105         At the hearing, Ms. Leclerc confirmed that she looked at the complainant’s exam answers while preparing for her testimony. She then mentioned that at first glance, the math in his answer seemed correct to her and that the mark of 4 for that response may have been 4 out of 4 at the time. On the complainant’s corrected exam, only a 4 appears beside his answer to question 2; the value of this question is not specified. Three years have now gone by since the board corrected the exams. In fact, the board had awarded a mark of 4 out of 7 to him for this question.

106         At the hearing, Mr. Langlois explained that the complainant’s answer was not correct and that the assessment board gave him a mark of 4 out of 7 at the time. He explained that the board assigned that mark because according to the marking scheme, the calculation method was not right and had prevented the complainant from reaching the correct answer. He added that despite that fact, the complainant received a passing mark for this question, 4 out of 7.

107         As I explained at the hearing, the Board’s role is not to repeat the process, to reassess marks that the board awarded to a complainant, or to review the correction. Instead, the Board’s role is to examine the process that the deputy head used, to determine if there was abuse of authority.

108         Mr. Langlois explained why more than three years ago the board found that the complainant’s answer to question 2 was not entirely satisfactory. His uncontested testimony indicated that the mark that the complainant obtained can be attributed to his deficient calculation and to his imperfect answer. Although the mark of 4 out of 7 might have resulted from a strict correction, an abuse of authority consists of much more than mere errors and omissions (see Tibbs, at para. 65).

109         Therefore, I find that the assessment board did not commit an error that would constitute an abuse of authority when it awarded a mark of 4 out of 7 for this answer. Finally, a mark higher than 4 out of 7 would have had no significant impact on the fact that the complainant was eliminated from the process. Even had he obtained 7 out of 7 for this question, his final mark would have been 3.5 out of 7 (given that 30% of 7 is 2.1 and that 70% of 2 is 1.4). However, the pass mark for this qualification was 4 out of 7.

110         In light of all these facts, I find that the complainant did not establish that the respondent committed an error when it awarded him a mark of 4 out of 7 for question 2.

Issue 5: Did the respondent screen out the complainant in a discriminatory manner?

111         On October 10, 2014, the complainant wrote the following to the assessment board after being informed that he had not met one essential qualification assessed in the exam:

[Translation]

...

In a context in which ageism is omnipresent in both public and private, I wish to verify for myself whether this is a case of that type of segregation or of something else that has nothing to do with my qualifications for the positions you are offering, which are at the same level as the one I now occupy.

Thank you for providing me with what I have requested so that I can obtain a clear idea of what is going on in this process.

112         According to the evidence the complainant filed, 79 people applied to the staffing process. Ultimately, 32 candidates were successful at the preselection stage, 26 wrote the PSC exam, and 24 wrote the skills assessment exam. Four candidates passed the second exam.

113         In his allegations, the complainant stated the following:

[Translation]

...

Second, as is the case elsewhere, hiring people of my age, who represent about 3% of the PS, is avoided in both the public and private. Of course, it’s not an easy thing to prove without using a truth serum and individually questioning selection jurors.

114         Under s. 80 of the PSEA, the Board can interpret and apply the Canadian Human Rights Act (CHRA) to determine whether a complaint under s. 77 is substantiated.

115         In this case, the complainant stated that he was a victim of age discrimination.

116         Section 7 of the CHRA stipulates that it is a discriminatory practice, directly or indirectly, to 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 age.

117         With a human rights question, the complainant must establish prima facie evidence of discrimination. In Ont. Human Rights Comm. v. Simpsons-Sears,[1985] 2 S.C.R. 536 (known as “O’Malley”), the Supreme Court of Canada stated as follows the test that allows establishing a prima facie case of discrimination, on page 558:

... 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....

118         To establish a prima facie case of discrimination, the complainant had only to show that the discrimination was among the factors that compelled the respondent to eliminate him from the appointment process, regardless of whether it was a unique or a main factor (see Holden v. Canadian National Railway Company (1990), 14 C.H.R.R. D/12 (F.C.A.) at para. 7).

119         The Board must determine whether the complainant’s discrimination allegation, to the extent that it is proved valid, justifies a finding in his favour in the absence of an answer from the respondent. Therefore, at this stage of the analysis, the Board must determine whether a prima facie case of discrimination has been established, without taking into account the respondent’s explanations (see Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 22).

120         If the complainant were to succeed in establishing a prima facie case of discrimination, the onus then would shift to the respondent to show that the decision was not discriminatory. It could either provide a reasonable explanation for its decision to eliminate him from the appointment process or invoke an exception set out in the CHRA.

121         In this case, the complainant is in his fifties. He stated that he was a victim of age discrimination because the respondent avoids hiring people of his age. Yet, he did not adduce any evidence supporting his statement that his candidature was rejected because of his age.

122         In Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, the Canadian Human Rights Tribunal (CHRT) found that something in the evidence, independent of what the complainant believes, must confirm his or her suspicions. The CHRT expressed this statement as follows in a different context:

...

[41] The question that I am left with is this: if an employee believes that someone in a different ethnic group is doing the same job, and receiving a higher wage, is that enough to establish a prima facie case of discrimination?I think there must be something more. There must be something in the evidence, independent of the Complainant’s beliefs, which confirms his suspicions. I am not saying that a Complainant’s beliefs do not have any evidentiary weight. It depends on the circumstances. But an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough.

...

123         When it dismissed the judicial review request, the Federal Court found that the CHRT’s finding, according to which the evidence was so minimal as to have no effect in law, was appropriate with respect to the test of a prima facie case (see 2006 FC 785).

124         In this case, the complainant’s allegation that he was a victim of age discrimination is not enough to reach a finding in his favour. He did not provide any evidence to support his contention. Apart from his personal opinion, no evidence demonstrated that age was a factor in the respondent’s decision to reject his candidature.

125         Therefore, I find that the complainant has not established a prima facie case of age discrimination.

126         Finally, although this finding is enough to dismiss the complainant’s discrimination allegation, I find that nevertheless, the respondent provided a reasonable explanation of its decision to eliminate him from the appointment process, which would refute his allegation, were it accepted.

127         As established earlier, the complainant did not meet the qualification of the ability to manage financial resources, and for that reason, he was eliminated from the process. In October 2014, Mr. Langlois also replied as follows to the complainant in response to his allegation that his age might have been a factor in the assessment board’s decision to screen him out: “[Translation] We can assure you that the assessment board acted with honesty and impartiality when correcting all the written material, including yours.”

128         In addition, the assessment board members all stated that the candidates’ ages did not influence the assessment results. Specifically, they stated that age was not a factor in the selection process. Additionally, they made it clear that the assessment tools were developed with the intention to place all candidates on an equal footing.

129         Similarly, the assessment board members added that the complainant was eliminated at the written exam stage and that they did not see him during his exam.

130         In sum, the balance of probabilities does not support the allegation that the complainant’s age was among the factors that compelled the respondent to screen him out.

131         Therefore, I find that the complainant did not demonstrate that the respondent discriminated against him by screening him out.

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

Order

133         The complaint is dismissed.

May 14, 2018.

FPSLREB Translation