FPSLREB Decisions

Heard at Toronto, Ontario,
July 18 and 19, 2017.

REASONS FOR DECISION

I. Summary

1        The complainant, Robert Johnston, filed a complaint under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the Act”) alleging that there was an abuse of authority by the respondent, the Director of Public Prosecutions, in the application of merit in the appointment process for a team leader position (classified LP-3; selection process number 2015-PPSC-IA-EE-97542) in the Kitchener, Ontario, office of the Public Prosecution Service of Canada (“the PPSC”) -Ontario Regional Office. Specifically, the complainant alleges that there was an apprehension of bias in the mind of the hiring manager towards the staff of the office where the complainant worked, which was the respondent’s Brampton Local Office in Brampton, Ontario.

2        The complainant also alleges that a punctuation error occurred in the initial essential qualifications listed in the Job Opportunity Advertisement (JOA), which he brought to the respondent’s attention. After it revised the punctuation, the complainant alleges that the second statement of merit criteria (SOMC) was improperly approved by the hiring manager who comprised the assessment board and who the complainant submits did not have statutory authority under the Act. He also alleges that the revised SOMC was distributed improperly, only to those who had submitted applications based upon the initial JOA.

3        And finally, the complainant alleges that the respondent committed an abuse of authority in the application of merit when it erroneously concluded that he did not meet the essential criteria of having significant experience as a team leader and that personal favouritism existed in the appointment process.

4        Having listened carefully to all the testimony and the complainant’s well-researched and well-prepared arguments, and having considered all the documentary evidence and jurisprudence submitted by the parties, I conclude that there was neither a reasonable apprehension of bias nor actual bias on the part of the hiring manager.

5        Nor do I find any errors, omissions or inappropriate behaviour amounting to an abuse of authority in how the complainant was assessed against either the first or the second SOMC. I conclude that the second SOMC was a clarification of the first SOMC.

6        The respondent took care to ensure a fair assessment of the complainant’s application. The Federal Public Sector Labour Relations and Employment Board (“the Board”) and its predecessors have consistently declined to uphold complaints that suggest that other, unnamed employees suffered harm or were prejudiced by being denied an opportunity, as was alleged in this case.

II. Background

7        The complainant was called to the bar as a lawyer in 2000 after a 17-year career as a police officer. He worked as an LP-2 in the Brampton Local Office at the time of the events that led to this complaint, which he filed with the Public Service Labour Relations and Employment Board on August 13, 2015.

8        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 to the Federal Public Sector Labour Relations and Employment Board and the title of the Public Service Labour Relations and Employment Board Act to the Federal Public Sector Labour Relations and Employment Board Act.

III. Analysis

9        The complaint was made pursuant to s. 77 of the Act, which provides that an unsuccessful candidate in the area of selection for an internal appointment process may make a complaint to the Board that he or she was not appointed or proposed for appointment because of an abuse of authority. The complainant has the burden of proving that on a balance of probabilities, the respondent abused its authority (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 49 and 55).

10        Section 30(1) of the Act states that appointments to or from within the public service must be made on the basis of merit, and s. 30(2)(a) states that an appointment is made on the basis of merit when the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head.

11        “Abuse of authority” is not defined in the Act; however, s. 2(4) offers the following guidance: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.”

12        As Chairperson Ebbs of the Board noted in her recent decision, Ross v. Commissioner of the Correctional Service of Canada, 2017 PSLREB 48 at para. 14, the Board and the former Public Service Staffing Tribunal (PSST) have established that s. 2(4) of the Act must be interpreted broadly.

13        That means that the term “abuse of authority” must not be limited to bad faith and personal favouritism. In Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 21 and 38, the Federal Court confirmed that the definition of “abuse of authority” in s. 2(4) of the Act is not exhaustive and that it can include other forms of inappropriate behaviour.

14        The nature and seriousness of the improper conduct or omission will determine whether it constitutes an abuse of authority; see Tibbs, at para. 66.

A. Issues

1. Was there bias or a reasonable apprehension of bias towards the complainant?

15        The complainant testified that he understood that many complaints had been filed against Mr. Stephane Marinier, Deputy Chief Federal Prosecutor, Regional Operations by lawyers in the Brampton office who felt harassed by him. The complainant also testified that a “Workplace Assessment” report dated March 31, 2014, had been prepared, and it was adduced as an exhibit. That report is a rather banal document that makes findings and recommendations that include the following:

…

1.   Perceived Poor Leadership

A number of concerns regarding the leadership of the Brampton office were expressed. There was a sense of poor communication between the leadership and the staff, inequality in treatment … and lack of collaboration. There was an overall feeling of being unsupported. These issues appear to have been percolating for some time and there was a perceived concern that the leadership issues have negatively impacted the reputation of the Brampton office.

2.   Lack of Sufficient Staffing

…

Although many of the staff appear to have adapted to the pace of the workplace, it was not without sacrifice. Both counsel and administration staff spoke of the impact to their health and wellbeing, including the anxiety associated with maternity leaves. The Brampton staff have felt ignored and under-resourced for a long time.

2.   Gaps in the Perceptions of Senior Management and the Brampton Team

Gaps between the perceptions of senior management and the staff participants were notable. These differing points of view likely impact the overall cohesiveness as priorities/perceptions/concerns of the staff were not aligned with the priorities/perceptions/concerns of leadership.

3.   Lack of successful conflict resolution forums.

Participants of the Brampton office appear to have struggled with either coming forward with issues regarding senior leadership, or have not felt that their issues were ever addressed and resolved when raised with upper leadership.

We are not in a position to validate what processes did occur, but the subjective perceptions merit consideration. Some staff indicated not raising issues for fear of reprisal. It is also the nature of professions such as the legal profession where “complaining” about leadership is not viewed as a wise career move. This practice of reluctance results in a bottleneck of issues that are not communicated upwards, which leave them unresolved and creates risks for the PPSC.

…

8.   CONCLUSION

The Assessment illuminated the strong perception of concern regarding the leadership of the Brampton office and the relentless pace required of the staff. However, there is a strong foundation of dedicated and loyal staff who thoroughly enjoy their contributions to the PPSC and work diligently to succeed in fulfilling their obligations. Therefore, the PPSC can only benefit from hearing and responding to the openness and candor [sic] of those who participated.

16        Having read the whole report, and consistent with the findings and conclusion that I have summarized, I place very little probative value on this evidence as the information is so generalized that it adds virtually nothing to the complainant’s allegations, which are that I should find an apprehension of bias in how Mr. Marinier treated him.

17        The complainant explained that other lawyers had told him that many complaints had been filed against Mr. Marinier and that they cautioned him to be careful around Mr. Marinier. The complainant added that he was fine with Mr. Marinier and that they would talk and discuss their kids’ football activities.

18        The complainant testified that during a harassment training session, a discussion arose in which Mr. Marinier “exploded” and said that he could not trust anyone working in the Brampton office.

19        The complainant further explained that he had heard that information from the office had been disclosed that had had a negative impact upon Mr. Marinier during his divorce proceedings.

20        When he was asked in examination-in-chief about harassment complaints and his alleged comments about the Brampton office, Mr. Marinier testified that he was aware that three harassment complaints had been filed. He said that while he never saw them, he was told that two of them were not related to his interactions with his staff.

21        Mr. Marinier testified that each complaint was reviewed and that no further investigation was found necessary. He added that the workplace assessment was carried out because the union had pushed for it.

22        Mr. Marinier testified that he had not exploded, as the complainant alleged. Mr. Marinier testified that had he done so, he would have been spoken to about it by his superior, the deputy director of prosecutions.

23        Mr. Marinier stated that he did not recall his exact words, but he said that he had been very emotional at that moment. He repeated that he did not recall saying that he could not trust anyone at the Brampton office.

24        Given the testimony on what Mr. Marinier said, I find it more likely than not that he in fact stated that he did not trust anyone who worked at the Brampton office, as the complainant testified.

25        Mr. Marinier was not able to recall exactly what he said at that time, which I do not doubt, given that both witnesses testified that he said it at a particularly emotional juncture of a large group discussion.

26        While I accept the complainant’s testimony as to this one utterance of Mr. Marinier, I did not have the benefit of the full context of the broader discussion within which it occurred.

27        What I do know from the testimony of both witnesses is that the utterance arose during a discussion with many or all the office staff and that it was made in response to someone in the large group raising the matter of Mr. Marinier’s divorce, which he described as “acrimonious”.

28        Mr. Marinier was not pleased with such a personal and unpleasant issue being put on the table for discussion in front of the office staff that he managed. I can infer from his testimony that it had been a difficult discussion and a stressful experience for him.

29        The complainant testified that Mr. Marinier exploded because someone at the meeting mentioned that it was understood that someone from the Brampton office had leaked personal information about him either to his estranged wife, to help her in their divorce proceedings, or publicly, again to help her.

30        Mr. Marinier testified that while difficult issues arose for discussion in the harassment seminar, which he addressed, he said that he never doubted that the complainant had any connection to the matters of information about his divorce being disclosed that caused his very emotional reaction.

31        As additional relevant background to the harassment complaints that the complainant raised, Mr. Marinier testified that before he arrived to be the head of the office, the staff had been left largely on their own, as his predecessor had focused more upon his litigation files. Mr. Marinier explained that he brought a more focused management style to the Brampton office as he found it “largely dysfunctional” upon his arrival.

32        Given the text noted earlier from the workplace assessment, I find its conclusions entirely consistent with an office with a very heavy and stressful workload that is being managed by a new manager in a style that is a contrast to that of the previous manager.

33        The complainant noted in argument on this allegation the fact that this Board

has found that it is not necessary that actual bias be found, as a reasonable apprehension of bias may constitute abuse of authority (see Ryan v. Deputy Minister of National Defence, 2014 PSST 9 at para. 25, which cites Denny v. Deputy Minister of National Defence, 2009 PSST 29 at para. 125, referring to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394).

34        In its original form, in Committee for Justice and Liberty, at 394, the Supreme Court of Canada enunciated the test for the apprehension of bias as follows:

…“what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”

35        In Ryan, relying on Gignac v. Deputy Minister of Public Works and Government Services,2010 PSST 10, which in turn relied upon Committee for Justice and Liberty,  the PSST adapted that test, as follows:

…

Where bias is alleged, the following test can be used to analyze this allegation, while taking into account the circumstances surrounding it: If a reasonably well 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.

…

[Emphasis added]

36        Given the testimony I have documented on this matter, within the important context of how and when Mr. Marinier’s utterance arose, I cannot agree with the complainant’s submission that a reasonably well-informed bystander would reasonably perceive bias in the mind of Mr. Marinier towards him.

37        Rather, I find that a reasonably well-informed bystander viewing the matter realistically and practically, as noted in the original Supreme Court of Canada test, would see this utterance for what it was; namely, an emotionally charged response made at a moment of stress when Mr. Marinier’s very personal affairs were being made the subject of office discussion, in front of his staff.

38        Any reasonable-minded bystander viewing this matter with that proper context, and not just being aware of the utterance in isolation, would understand that the utterance of not trusting the office staff referred to Mr. Marinier’s personal affairs and documents, which the evidence shows had been leaked during the course of his acrimonious divorce proceedings.

39        Taken in its proper practical context, the evidence would convince any reasonable bystander that the impugned utterance had nothing to do with either the complainant personally or the office of prosecuting attorneys as it related to its conduct of professional office duties.

40        For those reasons, I conclude that the complainant did not meet his burden of proving that there was bias or any reasonable apprehension of bias by Mr. Marinier towards him.

2. Was the SOMC amended or simply clarified? Did the respondent commit an abuse of authority by allowing someone to amend it who did not have authority to under the Act?

41        The complainant alleges that a material change was made to the essential qualifications as the SOMC was reissued after he sent many long emails pointing out what he saw as problems with the respondent’s interpretation of the wording and punctuation, which he suggested caused his application to be improperly screened out.

42        Counsel for the respondent responded by arguing that the essential criteria were not changed and that the SOMC was clarified only to try to address the many concerns that the complainant had raised with it. The respondent argued that the interpretation of the essential criteria and its use in screening the applicants remained entirely consistent through the process.

43        The complainant refers to the fact that the Act sets out separate and distinct authorities for hiring someone and for creating essential qualifications for the work to be performed. Specifically, ss. 30(1) and (2)(a) state as follows:

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

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

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head ….

44        The facts relevant to this allegation are not in dispute.

45        The initial JOA for the LP-03 team leader position in Kitchener was posted early in 2015, with the closing date set at March 2, 2015, and it included the following essential qualifications:

…

Experience:

• Significant* experience leading, or in taking on a leadership role in a criminal litigation team, in the conduct of ill-defined and complex litigation.
• Experience in coaching and mentoring others on matters relating to criminal investigations and litigation.

* Significant is defined as experience associated with a broad range of progressively increasing complexity of criminal litigation over a six (6) year period accumulated within the past twelve (12) years.

…

46        The JOA specified the following asset qualifications:

• Significant* experience in the conduct of prosecutions in complex cases and in areas of federal subject matter responsibility relating to organized crime, controlled drugs and substances enforcement, fiscal or regulatory offences.
• Recent and direct** experience in leading a prosecution team consisting of a combination of counsel and legal support staff on large and complex cases, or in overseeing areas of criminal prosecution practice with federal subject matter responsibility relating to organized crime, controlled drugs and substances enforcement, fiscal or regulatory offences.
• Experience in providing legal advice to police, investigation agencies, managers, or government officials.

* Significant is defined as experience associated with a broad range of progressively increasing complexity of criminal litigation over a six (6) year period accumulated within the past twelve (12) years.

** Recent and direct is defined as experience associated with active cases within the previous three (3) years in which the candidate was lead Counsel in charge of the case.

47        The complainant responded to it with an application, but by a letter dated March 30, 2015, he was informed that he had been screened out due to being found not to meet the following essential qualification: “Significant* experience leading, or in taking on a leadership role in a criminal litigation team, in the conduct of ill-defined and complex litigation.”

48        After he received the notice that he had been screened out, the complainant inquired and was told to direct his questions about it to Mr. Marinier. The complainant emailed him a four-page note on March 31, 2015, at 10:24 a.m., and, among other things, requested an explanation of “… what exactly was required as ‘significant experience’ …”. The note also stated the following:

…

It seems quite clear that the requirement is that the applicant have;

1. Significant* experience leading in the conduct of ill-defined and complex litigation.

Or

2. Significant* experience in taking on a leadership role in a criminal litigation team

…

[Emphasis added]

49        In the note that he provided, the complainant then mentioned significant examples of his ability to lead in the conduct of ill-defined and complex litigation. He specifically mentioned cases, many of which were highly complex and thus ill defined, in the cover letter in his application. He then provided considerable detail while repeating his many qualifications and relevant experience, which he believed should have been sufficient to screen him in. He then asked for the decision to be reconsidered.

50        Mr. Marinier responded on April 1, 2015, at 1:46 p.m., and explained that the first of the two essential qualifications (significant experience leading, or in taking on a leadership role in a criminal litigation team, in the conduct of ill-defined and complex litigation) included the following four elements:

…

1. Significant experience;
2. leading or taking on a leadership role;
3. In a criminal litigation team; and
4. In the conduct of ill-defined and complex litigation.

…

51        Mr. Marinier stated his disagreement with the complainant’s suggestion in the previous email that a criminal litigation team includes “Police, Customs, Immigration and other law enforcement participants as well as civilian witnesses in some circumstances, other counsel, law-students [sic], paralegals and support staff”.

52        Mr. Marinier also stated that the position advertised was for a team leader who would be expected to lead a team of lawyers, paralegals, and support staff. He also stated that by necessity, a criminal litigation team would include other counsel and in some cases paralegals or support staff, depending on their roles within the particular prosecution, but it would not include law enforcement personnel or civilian witnesses as the complainant suggested.

53        He went on to address some aspects of the complainant’s email and explained that the complainant’s stated work experience did not provide or detail the experience necessary to satisfy the four essential elements of the second of the two essential experience qualifications. He added that the list of cases that the complainant provided by and large showed that he either assisted as co-counsel or had sole carriage of them.

54        The complainant replied on April 2, 2015, at 6:06 p.m., as follows:“Thanks Steph! I will review this some time [sic] this weekend and if I have any further questions or wish to meet I will let you know Tuesday!”

55        Having had the long weekend to apparently consider the matter in much further detail, the complainant then sent a six-page-equivalent email on April 8, 2015, at 2:36 p.m., which was set out in a strongly worded advocacy-style argument that was obviously intended to persuade Mr. Marinier that his decision to screen the complainant out had been erroneous.

56        Among the many arguments in this email, the complainant introduces his assertion that Mr. Marinier’s suggested interpretation of the essential criteria “defies grammatical logic.” He provided a lengthy description of the analysis supporting this conclusion and then repeated his earlier assertion, as follows:

…

As such the only logical conclusion as to what the First [sic] experience criteria sought evidence of was advertised as is a two-pronged criteria;

1. Significant experience leading in the conduct of ill-defined and complex litigation.

OR

2. Taking on a leadership role in a criminal litigation team in the conduct of ill-defined and complex litigation.

…

[Emphasis in the original]

57        While the complainant’s voluminous email advocacy did not succeed in convincing Mr. Marinier to change his decision on screening in the complainant, it did have the effect of causing the respondent doubt as to the efficacy of the punctuation in its SOMC, which led to the events that were motivated solely out of an effort to answer the complainant’s pages of written advocacy on the process, which in turn led to this complaint.

58        Mr. Marinier replied to the complainant on April 16, 2015, at 11:15 a.m., and in an obvious attempt to bring about a cessation of the email advocacy stated that he had consulted with Human Resources. He did not respond at length and suggested that it was not necessary to engage in any further lengthy email exchanges.

59        He stated that the essential qualifications and asset qualification at issue had been taken from earlier, similar competitions, with the object of maintaining some measure of consistency. To the extent that the wording might allow for different interpretations, the one he provided was consistent with the intent and meaning of the essential and asset qualifications. More importantly, the same interpretation had been used in the screening process applied to all applicants.

60        He stated that to the extent that clarification might be needed, Human Resources would contact all the applicants with a clarification and would invite those interested to resubmit their applications. He mentioned that the screening board would be reconstituted to include him and Tom Andreopoulos and that the screening process would be done over.

61        On April 16, 2015, the respondent corresponded with all the candidates who had submitted applications based upon the JOA. The correspondence was titled “ERROR IN EXPERIENCE CRITERION”, and it provided the relevant selection process number and position title. The candidates were told that they were not required to but that they could choose to resubmit their applications based upon the clarified criteria. The correspondence included the following:

…

Dear Candidate,

Further to the elimination email you received on March 30, 2015, this is to advise that a grammatical error has been identified in one of the experience criterion [sic] listed on the statement of merit. It has been determined that the error could have resulted in different interpretations of the experience requirement. The experience criterion should read as follows:

• Significant* experience in leading or in taking on a leadership role in a criminal litigation team, in the conduct of ill-defined and complex litigation.

[For the reader’s ease of reference, the original text, as cited earlier, stated as follows:

Significant* experience leading, [emphasis added] or in taking on a leadership role in a criminal litigation team, in the conduct of ill-defined and complex litigation.]

*Significant is defined as experience associated with a broad range of progressively increasing complexity of criminal litigation over a six (6) year period accumulated within the past twelve (12) years.

Please note there are three elements to the experience criterion:

1. Significant* experience in leading or in taking on a leadership role
2. In a criminal litigation team, and
3. In the conduct of ill-defined and complex litigation.

…

62        On the next day, April 17, 2015, the respondent sent the candidates the following email:

Candidate,

Please find below definitions that may assist you in resubmitting your application:

• “Criminal litigation team” can be broadly defined to include two very distinct groups of individuals. It could either include a team of lawyers and support staff who together, form a team or an office with the responsibility of carrying on the criminal litigation work in a defined jurisdiction, or it could include a group of two or more counsel assigned to one prosecution file, with a lead counsel clearly identified, and could also include support staff who provide significant litigation support during all or most of the life of the prosecution file.
• “Ill-defined” and “complex”, is defined as the application of complex, intricate, uncertain, or emerging legal principles in the conduct of litigation involve complex legal and or factual matrixes (i.e. lengthy investigations with significant evidence gathered, often taking many forms, such as surveillance, intercepted communications, police agents, undercover police officers, Judicial authorizations, etc … and often including more than one accused).

… we invite candidates to resubmit their application should they feel necessary. Please note that you are not required to resubmit.

… If we do not receive a response, we will consider your initial application to the selection process.

…

[Sic throughout]

63        Mr. Marinier testified that Human Resources issued the clarification to all those who had already applied and indicated that they could, but were not required to, resubmit their applications based upon the clarified SOMC. He also stated that due to the complainant’s concerns, he invited Mr. Andreopoulos, who was a management colleague, to join the assessment board to review the complainant’s second application, which was the only one received in response to the clarification.

64        When asked in cross-examination about the process and decision that led to the clarification of the SOMC through the “error” email of April 16, 2015, Mr. Marinier stated that he did not instruct Human Resources staff assigned to the file to do anything. He explained that they told him that clarification was required based upon the complainant’s input and advised further that in the interests of fairness, the clarification would be issued to all candidates.

65        In cross-examination, Mr. Marinier explained that the respondent’s head office senior staff had previously considered the essential qualifications for the team leader position and had issued a standard national document to ensure consistency throughout its national operations. He added that he did not speak to those who had drafted it during the course of the process at issue; he said he spoke only to Human Resources staff, who advised him on the proper conduct of the process.

66        When challenged in cross-examination about his assessment of the two applications from the complainant and the later involvement of Mr. Andreopoulos, Mr. Marinier stated that he applied the same criteria in the same manner to every application, including the complainant’s second one. He added that the second board member was added to try to address the allegation of bias towards him as the complainant had alleged in one of the emails he sent after being screened out.

67        The complainant viewed the second SOMC as significantly disadvantaging his candidacy as his reading of the original one gave rise to his opinion that his work history satisfied that version.

68        When questioned about whether the merits of the complainant’s application met the essential criteria, Mr. Marinier testified that nowhere in the complainant’s applications did he state that he had work experience leading two or more lawyers. Mr. Marinier confirmed that the complainant did lead something called “ipoc” but that Mr. Marinier’s personal knowledge of the workings of “ipoc” allowed him to determine that that work did not meet the essential criteria.

69        Mr. Marinier also testified that while the complainant’s application stated that in the past he had served in an acting capacity as a team leader in Kitchener, Mr. Marinier stated that he was aware of only one occasion, and he confirmed through email database searches that such an assignment did take place once for a one-week vacation relief.

70        Mr. Mariner also testified that if the complainant had in fact served as an acting team leader on other occasions, the substance of the work that he had performed was still missing from his application, which would have shown how that work fit the other stated criteria in the SOMC.

71        Mr. Marinier also read line-by-line the many criminal prosecutions and police experience the complainant listed in his application and provided his reasons for determining that each line did not meet the stated criteria in the SOMC.

72        Mr. Marinier was cross-examined on his assessment of the complainant’s application and on the decision to select the candidate that was offered the appointment. Mr. Marinier testified that the eventual appointee was the only one found to meet all the essential criteria and the other factors used to consider suitability. Mr. Marinier explained that while he personally selected the candidate for appointment, he also briefed the Chief Prosecutor, who Mr. Marinier said had to consent to the appointment.

73        Counsel for the complainant submits that the deputy head establishes an SOMC and that separately, the selection board exercises delegated hiring authority from the Public Service Commission (PSC) to select a candidate and make the appointment. The complainant notes that ss. 30(1) and (2) of the Act set out as follows a clear separation of authority for delegation from the PSC for hiring and for establishing an SOMC:

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

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

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

(b) the Commission has regard to

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

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

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

74        Counsel for the complainant submits that the respondent violated these authorities when the selection board unilaterally amended the SOMC by changing the punctuation, which, he submits, materially altered the essential qualification, to the complainant’s detriment. Counsel for the complainant submits that such a violation of a statutory delegation of authority is a serious error and that in the past, has been found to be an abuse of authority.

75        Federal Court authority supporting the complainant’s submission is found in Canada (Attorney General) v. Allard, 2008 FC 1294, at para. 71, which concludes that the screening board in that case, as a representative of the PSC, was not allowed to add to the department’s required qualifications.

76        This case cites Canada (Attorney General) v. Blashford, [1991] 2 F.C. 44 (C.A.), which concluded that a screening board is not entitled to intervene either by adding or by partially modifying the basic requirements, as defined by the department. Blashford cites Bambrough v. Canada (Public Service Commission Appeal Board), [1976] 2 F.C. 109 (C.A.). The Federal Court of Appeal stated as follows in Blashford, at para. 25:

…

Bamborough has decided, in my view, a) that the qualifications for a position, while generally established by a department before the selection process has begun, may be validly amended by a department after a selection process has begun provided the change is not a device for giving one candidate an unfair advantage over others and is no more than a reasonable elaboration of a requirement suggested by the original statement of qualification; and b) that the Commission may participate in the making of such an amendment provided the decision-maker [sic] continues to be the department….

…

77        Counsel for the respondent submits that the evidence shows that the meaning and application of the SOMC to the applications remained entirely consistent throughout both processes and that the second SOMC was only a clarification, which in the past the Board has found acceptable, as a delegated manager was found fully entitled to clarify published essential qualifications in Jean-Pierre v. Chairperson of the Immigration and Refugee Board, 2016 PSLREB 62 at para. 88.

78        The complainant also cites the PSST’s decision in Burke v. Deputy Minister of Department of National Defence, 2009 PSST 3, which found an abuse of authority when changes were made to an SOMC after candidates had been assessed. The PSST found the changes significant. The candidates were not reassessed against the new criteria; nor were they notified of the revisions. The PSST concluded that no logical explanation had been given for the change and that the failure to reassess the candidates against the new criteria had been reckless and an abuse of authority.

79        I distinguish Burke on its facts as in this case, the candidates were informed of the SOMC clarification, and the complainant was the only one to resubmit his application, which was reassessed against the clarified criteria. That was consistent with the interpretation of the criteria used to assess the other candidates.

80        The complainant noted that recently, the Board relied upon Burke in De Santis v. Commissioner of the Correctional Service of Canada, 2016 PSLREB 34, in which it was found that an abuse of authority occurred when the educational requirement applied to assessing candidates for appointment was not the same requirement stated in the expression of interest.

81        The complainant also cited Renaud v. Deputy Minister of National Defence, 2013 PSST 26, as authority for a finding of abuse of authority. In that case, an assessment board interpreted the wording of an SOMC in a manner contrary to the plain and ordinary meaning of the words, to appoint a candidate that did not meet the essential criteria (see paragraph 43). The PSST further found that the SOMC contained an error in one of the essential qualifications that was wrongly interpreted against the plain and ordinary meaning of the word to allow selecting a candidate who clearly was not qualified. That did not occur in the matter before me.

82        Counsel for the complainant also noted the complainant’s testimony that he was screened in as meeting all essential criteria for the same position as is at issue in the matter before me in an appointment process in another region. This fact does not assist the complainant in proving that an abuse of authority occurred in this appointment process. I have heard compelling testimony from the delegated manager, Mr. Marinier, as to why the complainant did not meet the essential qualification and was screened out of this appointment process.

83        The complainant also suggested that it was improper for the SOMC to be revised and circulated only to the staff who had applied. He suggested that it should have been republished. He submitted that it was also improper to add a second assessment board member and then have that member collaborate only on assessing the complainant. I disagree. On the facts of the matter before me, I do not find that these procedural accommodations to try to answer the complainant’s many concerns were an error; nor do I find that they caused unfairness in the process.

84        Counsel for the complainant also submitted that it was improper to deny the complainant an opportunity to serve as the acting team leader and then to credit the eventual appointee in the assessment for experience gained in that acting position. The complainant relies upon Allard, in which the Federal Court considered earlier jurisprudence from Levac v. Canada (Attorney General), [1994] F.C.J. No. 622 (C.A.). However, as Allard concluded, at paragraph 118, “[e]ven if there was an advantage, that does not necessarily mean that all advantages are unfair. In this case, the sole fact that there were candidates who had worked as acting supervisors … for years … does not constitute an unfair advantage.”

85        As I stated in Warford v. Commissioner of the Royal Canadian Mounted Police, 2016 PSLREB 56 at para. 21, workplace actions that may appear to favour one employee in preparing that person for appointment can be reasonably justified by evidence showing that the impugned workplace actions were in fact required for the office’s operational requirements. Such actions will then be based upon merit and not improper personal favouritism.

86        The evidence before me suggests only that the acting team leader position that the eventual appointee was awarded was assigned to that appointee purely for valid operational and meritorious reasons as noted in Mr. Marinier’s testimony (see paragraphs 96 and 99).

87        Counsel for the respondent submits that the SOMC clarification was a distinction without consequence as the complainant did not meet the essential criteria either way.

88        The complainant’s argument on this allegation rests entirely upon his highly subjective interpretation of the original SOMC. My reading of the two SOMCs is that they are clear and consistent and that they were not changed in any material way by the clarification.

89        Contrary to the complainant’s opinion that the respondent’s SOMC interpretation defied grammatical logic, I conclude that his analysis for his interpretation of the initial SOMC defies common sense logic when the context of the position and the work being performed are considered, rather than the grammatical qualities of the text.

90        The respondent was preparing to appoint a team leader to oversee a team of legal counsel conducting complex litigation. It is plainly obvious to me that it interpreted its SOMC in a manner consistent with seeking a candidate with experience in a team leader position or in leading a litigation team of lawyers, not just leading police investigations or leading support staff and co-counsel or working as solo counsel in complex prosecutions (as such experience was prevalent in the complainant’s application).

91        After a careful review of all the evidence, including the pages of emails from the complainant to Mr. Marinier in which he analyzes the SOMC’s wording and punctuation, I can reach only the same conclusion as Mr. Marinier provided in his testimony and in his reply emails to those of the complainant. I conclude that the complainant was not disadvantaged in any way by the clarification of the SOMC as he did not meet the qualification of either the original or the clarified SOMC.

92        Given my conclusion on the evidence before me that there was no material change to the SOMC but rather only clarification, I need not continue to analyze the very detailed and well-prepared submission from the complainant’s counsel with respect to the alleged unauthorized actions that he argued violated the proper delegation of the authorities in the Act.

3. Did the respondent commit an abuse of authority by allowing personal favouritism to influence decisions related to assigning acting appointments and later the appointment process?

93        The answer to this allegation is, simply, “No.” The evidence is clear that no personal favouritism was involved in the appointment or the appointment process.

94        The complainant testified that on several occasions, he requested to be assigned as the team leader on an acting basis to better acquaint himself with the relevant duties in anticipation of the eventual appointment to this position that he sought. He testified that he was denied an opportunity to act due to what his counsel argued was personal favouritism on the part of Mr. Marinier towards the eventual appointee, who had previously been chosen to serve in the position on an acting basis, thus gaining valuable experience to later help him secure the indeterminate appointment.

95        However, Mr. Marinier testified that he offered the position to another senior lawyer in the office who was already in a LP-03 pool before making the offer to the lawyer who was eventually awarded the indeterminate appointment.

96        Mr. Marinier also explained that it would have been extremely difficult for him to accept anyone to fill the acting position from outside the Kitchener office, such as the complainant from Brampton, as doing so would have required spending significant funds to cover travel expenses. He also testified that the lawyer chosen for the acting assignment was the best candidate in the office for it, as the others were not interested.

97        Mr. Marinier testified that these events occurred during a time of significant budget restraint within the department and that any lawyer who proposed to make a trip on highway 407 in Ontario that required paying a toll had to receive approval in advance from the head office for reimbursement of the expense.

98        There was no evidence whatsoever of any personal relationship between Mr. Marinier and the appointee or any of the staff lawyers, for that matter. In fact, Mr. Marinier testified that he purposely kept a professional distance from the staff he managed so as not to cause problems of bias in the proper discharge of his management duties in the office.

99        Mr. Marinier also testified that his choice of whom to place in the acting assignment had been based purely upon office needs, including travel budget restraint and merit.

100        For those reasons, I conclude that the complainant failed to discharge his burden of proof on the allegation of personal favouritism.

IV. Conclusion

101        For all of the above reasons, the complainant failed to discharge his burden of proof on all his allegations, and the Board makes the following order:

V. Order

102        I order the complaint dismissed.

August 15, 2018.