FPSLREB Decisions

Heard at Winnipeg, Manitoba,
June 27, 2018.

REASONS FOR DECISION

I. Introduction

1        Kirk McIntosh and Donna Myskiw (“the complainants”) are social program officers, classified WP-03, at the Stony Mountain Institution near Winnipeg, Manitoba. They are both long-serving employees with the Correctional Service of Canada (CSC), and they are both seeking career advancement opportunities. They took exception to a notice of an acting opportunity for an appointment for a term of four months less a day, as a manager of programs (classified WP-05) overseeing their area. The notice stated that the opportunity was open only to staff classified at a group and level of at least WP-04, thus denying them the opportunity to express an interest in being appointed.

2        Several employees were rotated into the position on acting basis including a person from another program area, Teresa McDonald, who was given two successive appointments to the position, for a cumulative period of six months. Each complainant filed a complaint under s. 77 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13;“the Act”) about the second of these appointments, alleging an abuse of authority in the assessment of merit and the choice of process.

3        The complainants filed their complaints with the Public Service Labour Relations and Employment Board on April 5, 2016. 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 (“the 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.

4        The Public Service Commission (PSC) did not attend the hearing. It submitted written submissions about the regulatory and policy framework of the appointment processes. It took no position on the merits of the allegations in this matter.

5        For reasons to be set out in detail later in this decision, I find clear and compelling evidence that the two-month appointment was based in part, and to a clearly material extent, upon representations from the Union of Solicitor General Employees (“the union”) in which it expressed strong views to the hiring manager about the position, the appointment, and the decision to extend the appointee for two months.

6        Such representations from the union that clearly affect an appointment decision are improper from an administrative law perspective. They bring external factors to bear upon the exercise of statutory delegated discretion to make an appointment. Therefore, such influence upon the decision maker amounts to an improper purpose within the statutory scheme of the Act, which I find serious, and is an abuse of authority.

II. Background

7        Around August 2014, the employer circulated by email a call for interest in acting opportunities for manager of programs (WP-05) positions (the Notice of Acting/Assignment Opportunity). According to a checklist that the respondent prepared after the appointment at issue in this case was made, there was a high level of interest and a decision was made to rotate several individuals through acting opportunities, one of whom was Ms. McDonald.

8        Ms. McDonald was appointed for several rotations including for a period of four months less a day that commenced on November 30, 2015. At the end of that period, she was reappointed on acting basis by an internal non-advertised process from March 30 to May 27, 2016 (process no. 2016-PEN-ACIN-PRA-111080). The complaints relate to this latter appointment.

9        The Information Regarding Acting Appointment posted about this appointment on March 21, 2016, states that applicants may file complaints if they are within the area of selection, which was indicated as CSC employees occupying a position at Stony Mountain Institution.

10        Initially, a representative from the union represented the complainants in this matter. He participated in a pre-hearing conference (PHC) call that I convened to prepare the parties for the hearing, which had been scheduled for March 15, 2018. Sometime after the PHC, he withdrew his representation, and later, it became known that the complainants had been unable to establish contact with the union office in Saskatchewan that had previously had conduct of the complaints. They advised the Board that due to this communication breakdown, they were unable to obtain any information about their complaints that the union had on file.

11        Subsequent to these events, Ms. Myskiw requested a postponement on March 6, 2018. After the Board made several requests for justification to support her request, and after receiving nothing other than “some personal issues have arisen”, it refused the request, and she withdrew her complaint on March 9.

12        In the afternoon on the day before the hearing, March 14, 2018, Mr. McIntosh sent a lengthy email to the Board’s Registry explaining the situation and stated that he was under duress and that he felt that he had no option but to withdraw his complaint. He further indicated that he had not been able to gain access to his files and that he had no knowledge of the Board’s complaint process.

13        Upon receiving this message from the Registry on the morning of the hearing on March 15, I asked it to contact Mr. McIntosh and to advise him that it was within his procedural rights to attend his hearing that morning and explain the situation he found himself in and that he could then request that the hearing be adjourned to allow him time to gather the documents for his complaint and to prepare to present his case. Mr. McIntosh attended the hearing, and upon his explaining the situation, he made a request to adjourn, which the respondent did not oppose. I granted the request.

14        Upon learning of the adjournment, Ms. Myskiw then sought leave from the Board on March 21 to reactivate her complaint. The respondent opposed her request and submitted that once a complaint is withdrawn, the Board is functus officio and lacks jurisdiction to hear it (see Howarth v. Deputy Minister of Indian Affairs and Northern Development, 2009 PSST 11).

15        In considering the request, I noted that it was clear Ms. Myskiw withdrew her complaint as a result of unsuccessful attempts to postpone the hearing. She felt that she could not adequately prepare for the hearing once her union representative ceased representing her. She withdrew her complaint rather than proceed in those difficult circumstances. Mr. McIntosh had sought to withdraw his complaint for the same reasons.

16        Upon Mr. McIntosh’s adjournment request being granted, Ms. Myskiw acted promptly to file her request. It is noted that none of the parties had opposed her original postponement request. Given the particulars of this case, in which both Mr. McIntosh and Ms. Myskiw filed essentially the same complaint with the same allegations, and given the fact that the hearing had already been adjourned until June 2018, I concluded that the respondent would suffer no prejudice if I took what I considered the extremely rare and extraordinary step of allowing Ms. Myskiw to reactivate her complaint, so I granted her request. Doing otherwise would have seemed overly formalistic and unjust under the circumstances.

III. Analysis

17        The two complaints, which were consolidated for this hearing, were made pursuant to s. 77 of the Act. Appointments of less than four months are excluded from the application of s. 77, unless they serve to extend the cumulative period of an employee’s acting appointment to four months or more (see s. 14(1) of the Public Service Employment Regulations (SOR/2005-334)). Since the reappointment at issue extended the cumulative period of Ms. McDonald’s acting appointments beyond four months, the complainants were entitled to file their complaints under s. 77.

18        According to s. 77 of the Act, in the case of internal non-advertised appointment processes, any person in the area of selection may make a complaint to the Board that he or she was not appointed or proposed for appointment because of an abuse of authority in the application of merit or in the choice of process. 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).

19        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.

20        “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.”

21        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.

22        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.

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

IV. Issues: Did the respondent abuse its authority by not basing the appointment on merit?

24        The complainants testified that when they saw the Notice of Acting/Assignment Opportunity posted in August 2014, they were very disappointed to discover that it said the opportunities would be limited to persons who were at least classified WP-04. Both complainants testified that they are very devoted to their careers and they watch closely for every possible opportunity to seek advancement at Stony Mountain Institution. They indicated that their personal development plans clearly stated their desire to seek promotion and advancement and that they had approached Barb Seavers, Assistant Warden for Interventions, on several occasions to inform her of their interest in career advancement and specifically to ask her to consider them for any possible appointments on an acting basis to allow them to gain supervisory experience, to bolster their chances in future appointment processes.

25        While both complainants spoke well of Ms. McDonald  they remained convinced that they were treated unfairly by their employer by being passed over for appointments on an acting basis and by setting the area of selection for the WP-05 opportunity to exclude their WP-03 classification.

26        The complainants also stated that since 2016, management has told them that a WP-05 appointment opportunity is being prepared but that to date, they continue to see only short-term renewals of the acting appointment. They submitted that this was evidence of bad faith on the part of the Correctional Service of Canada (the employer).

27        I clarified at the hearing that the events that arose after the two-month appointment at issue could not be relied upon in these complaints. The complainants replied that they understood and stated that more complaints had been filed in response to the subsequent appointments.

28        In her testimony on the matter of minimum qualifications for the appointment, Ms. Seavers explained that there was a significant pool of approximately 25 WP-04 or higher staff at Stony Mountain Institution plus another 25 parole officers and 2 teachers who could potentially all have been interested in the appointment. Therefore, the employer determined that it was not necessary to lower the qualifications to attract even more potential candidates.

29        She also testified as to the skills required for the WP-05 position and said that it was her belief that WP-04 staff more adequately possessed the skills and experience required to perform WP-05 duties than did WP-03 staff. The complainants contested her testimony by stating that they possess the same or similar skills as a WP-04 as related to writing reports, etc., to qualify them for the WP-05 position. The person in that position oversees report writing and performs quality control work on reports drafted by others.

30        I make no finding of fact on whether a WP-03 may in fact possess sufficient report writing skills to perform WP-05 duties.

31        I note that s. 34 (1) of the Act sets out clear authority for managers to determine an area of selection by establishing geographic, organizational, or occupational criteria.

32        This Board has consistently recognized the flexibility of managers to establish qualifications as they see fit. So did its predecessor, the PSST. Unless there is much stronger evidence than what is before me now to support a claim of personal favouritism, bad faith or other abuse of authority about this question, the Board will not second-guess managers in their decisions.

33        Counsel for the respondent pointed out that I addressed this same general issue of establishing essential criteria and access to acting opportunities in my recent decision in Abi-Mansour v. Deputy Minister of Fisheries and Oceans,2018 FPSLREB 53, as follows:

…

[120] It is well established that a hiring manager has wide latitude to establish essential and asset qualifications tailored to the workplace’s specific operational needs. The deputy head also has considerable flexibility to determine the right-fit criteria and the candidate that best fits them.

…

[122] The respondent relied upon the Federal Court’s decision in Lavigne v. Canada (Justice), 2009 FC 684 at para. 70, which held that creating essential qualifications was entrusted to managers and that it was not for the PSST (or this Board) to establish them for a position.

[123] In Jolin v. Deputy Head of Service Canada, 2007 PSST 11 at para. 25, the PSST similarly found that deputy heads are specifically empowered to establish essential and additional qualifications and to specify any operational requirements or current or future needs of the organization.

…

[129] 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.

34         Despite the fact that when the two-month appointment was made, the position had already been filled on an acting basis with other persons for 1.5 years, and on the evidence before me, I do not find that this fact alone amounts to anything untoward or an abuse of authority.

35        Given the clear statutory authority that I have noted in s. 34(1) of the Act and the lack of evidence indicating any bad faith or other abuses in how this authority was exercised, I am similarly disinclined to find that any problems arose from the employer’s choice of WP-04 as the minimum qualification level to seek appointment to the WP-05 position for the prior acting appointments.

36        The complainants drew attention to the “Checklist for Non-Advertised Appointment Process” document provided to managers by the CSC. Ms. Seavers confirmed that she completed this document and that she signed it on March 7, 2016, to justify her decision to renew the acting appointment for an additional two months.

37        In this document, Ms. Seavers states that due to a series of developmental opportunities given to WP-05 staff in her branch, a need has existed since April 1, 2014, to fill one or more of these positions on an acting basis.

38        Her document notes that the notice for expressions of interest had been issued and that in the 1.5 years since then, a number of staff had submitted interest. She further wrote that given that “high level of interest”, a decision was made to rotate several interested staff through the acting opportunities.

39        The document also requires the signatory to state the impact that the proposed non-advertised appointment might be expected to have on staff and in particular upon its morale.

40        In both her examination-in-chief and cross-examination, Ms. Seavers explained the rationale for the decisions that she made in consultation with the human resources and senior management teams at Stony Mountain Institution.

41        Ms. Seavers wrote the following in the document:

• The staffing action respects the stated guiding values (fairness, access, transparency and representativeness). A call for expressions of interest in acting/assignment opportunities as Manager of Programs was previously circulated, and suitable employees who expressed interest have been given or offered acting/assignment opportunities on a rotational basis. The current need is for a short-term extension until longer term needs can be confirmed, and if required, a second call for interest will be pursued.
• It is not anticipated that this short-term extension of Ms. McDonald’s acting assignment will negatively impact employee morale or employee perceptions of fairness, transparency, arbitrariness or personal favouritism. An expression of interest resulted in all suitable candidates being given or offered an opportunity to act, and staff have been advised, through the Union, that another call for interest will be made should a longer-term acting/assignment opportunity become available. Of note, the lack of consistency in the Manager of Programs position was recently brought to the local LMC table; this short-term extension of a current actor will help address those concerns by contributing towards consistency within the department.

42        As has just been noted in her written document, Ms. Seavers testified that the union voiced concern over the number of staff being given acting appointments. She explained that this was due at least in part to the union concern over access that staff in those positions would have to other employees’ performance evaluation reports that are on file.

43        Ms. Seavers testified that the union’s input played a role in the decision to extend the incumbent in the WP-05 appointment on an acting basis for another two months.  

44        Given the written document composed by Ms. Seavers noted earlier and her testimony providing further emphasis on this same point, I find there is clear and compelling evidence that the union’s input had a material effect in the decision of Ms. Seaver’s to renew the appointment of Ms. McDonald.

45        Counsel for the respondent argued that s. 30(4) of the Act states that there is no requirement to consider more than one person for an appointment for it to be made on the basis of merit. This Board has consistently recognized this authority under the Act, as noted recently in Merkley v. Deputy Minister of National Defence, 2017 PSLREB 47 at para. 24.

46        I agree with counsel for the respondent that there was no evidence indicating that the appointee did not meet all the essential criteria.

47        Counsel also referred me to the Federal Court’s decision in Lavigne v. Canada (Justice), 2009 FC 684, I note that Lavigne refers to the oft-cited Supreme Court of Canada case, Roncarelli v. Duplessis, [1959] S.C.R. 121, which states that “… there is no such thing as absolute and untrammeled ‘discretion’ …” in the performance of public duties.

48        In Roncarelli, the Supreme Court went onto observe that “‘[d]iscretion’ necessarily implies good faith in discharging public duty …”. Noting that “… there is always a perspective within which a statute is intended to operate …”, the Court held that “… any clear departure from its lines or objects is just as objectionable as fraud or corruption” (at page 140).

49        The Supreme Court also stated in Roncarelli that “good faith” means “… carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose…”. (at page 146).

50        While bad faith certainly includes situations of intentional fault on the part of a decision maker (as in Roncarelli), evidence of actual malice or intent to harm is not required to rebut the presumption of good faith; see Finney v. Barreau du Québec, 2004 SCC 36 at para. 40.

51        As the Supreme Court observed in Entreprises Sibeca v. Frelighsburg (Municipality), 2004 SCC 61, at para. 26, in addition to deliberate acts, the concept of bad faith can include “… acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith” (emphasis added).

52        Bad faith can encompass serious carelessness or recklessness. Indeed, “… recklessness implies a fundamental breakdown of the orderly exercise of authority, to the point that absence of good faith can be deduced and bad faith presumed”; see Finney, at para. 39.

53        This matter was considered by the Federal Court in Communications, Energy and Paperworkers Union of Canada v. Canada (Attorney General), 2013 FC 34.

…

[41] I agree with the CEP that absolute or untrammelled discretion, which may be exercised on the basis of any consideration which the decision-maker chooses, does not exist. In Roncarelli, above at 140, Justice Rand, concurring with the majority of the Supreme Court, stated that:

… [N]o legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute … “Discretion” necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate…

[42] Justice Rand opined that statutory discretion must be exercised on the basis of relevant factors, informed by the statutory scheme. According to Justice Rand, the irrelevant consideration taken into account in the cancellation of the applicant’s liquor licence in Roncarelliwas the applicant’s exercise of his “unchallengeable right” to post bail for Jehovah’s Witnesses. The scope of the discretion under the statutory scheme was informed by the purpose of the statute, relating to the sale of liquor in a restaurant (Roncarelli, above at 141). Just as the colour of a person’s hair or the province in which a person is born is irrelevant to the sale of liquor in a restaurant, neither was Mr. Roncarelli’s action to post bail (Roncarelli, above at 140).

…

54        The Supreme Court stated as follows in Roncarelli, at 139 and 140 (Justice Rand):

In public regulation of this sort there is no such thing as absolute and untrammelled “discretion”, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the ‘Commission may not be mentioned in such statutes but they are always implied as exceptions. “Discretion” necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted.

55        Given my findings of fact that despite the appointee possessing the essential qualifications for the appointment on an acting basis, the union’s intervention into the matter of who held the position clearly had a material impact in influencing the decision to renew the non-advertised appointment for two months. The resulting impact of the union’s intervention clearly fettered the decision-maker’s discretion and constituted an abuse of authority.

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

V. Order

57        I declare that the respondent abused its authority in the assessment of merit occurred in the appointment.

August 27, 2018.