Date:  20190621

File:  566-02-9019

 Citation:  2019 FPSLREB 59

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

Robin Hare

Grievor

and

TREASURY BOARD

(Department of Indian Affairs and Northern Development)

Employer

Indexed as

Hare v. Treasury Board (Department of Indian Affairs and Northern Development)

In the matter of an individual grievance referred to adjudication

Before:  Chantal Homier-Nehmé, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor:  Morgan Rowe, counsel

For the Employer:  Richard Fader, counsel

Heard at Ottawa, Ontario,

February 15 to 18 and September 19 to 20, 2016, and February 6, 7 and 9, 2017.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1]  The grievor, Robin Hare, identifies as a member of the Fishing Lake First Nation. She alleged that she was demoted without cause when she was transferred from an LA‑2A to an EC-07 position as a result of the failure of the Department of Indian Affairs and Northern Development (DIAND or “the employer”) to accommodate her during a pre-qualified pool process (PQP) as part of the Public Service Commission’s (PSC) Accelerated Aboriginal Recruitment Career Assignment Program (CAP). As remedy, she requested that she be appointed to an EX-01 position with financial compensation starting from her appointment to an EC-07 position effective March 1, 2011, damages for the violation of her human rights, and general damages for the egregious treatment she received from the employer.

[2]  The employer objected to the jurisdiction of the Federal Public Sector Labour Relations and Employment Board (“the Board”) and maintained that the grievor was deployed in accordance with the specific terms of her participation in the CAP, which she agreed to on February 1, 2001. She was not covered by a collective agreement during the CAP. Therefore, the Board does not have jurisdiction over her allegation that she was discriminated against pursuant to the standard no-discrimination clause. Moreover, the grievor did not establish that she suffered from a disability at the time relevant to the PQP. The employer’s attempt to accommodate her is not proof of a disability.

[3]  On October 9, 2013, the grievor gave notice to the Canadian Human Rights Commission that she was challenging the employer’s action as discriminatory. On November 12, 2013, it informed her that it did not intend to make submissions.

[4]  The grievor requested a sealing order of her medical file and all her medical reports. The employer did not object.

[5]  In Pajic v. Statistical Survey Operations, 2012 PSLRB 70, the adjudicator had to deal with a similar request for sealing exhibits. He summarized the applicable principles as follows at paragraphs 9 and 10:

[9] In the same vein, the parties have also requested that I seal a number of exhibits that contain information protected by the Statistics Act. In dealing with such a request, I must act within the parameters developed into what is known as the “Dagenais/Mentuck” test. The rule is that Court and quasi-judicial tribunal proceedings are public and documents that are on the record of those proceedings, such as exhibits, are also public. However, a Court or a quasi-judicial tribunal may impose limits on the accessibility to their proceedings or record in certain circumstances, where in its view the principle of open justice should give way to a greater need to protect another important right. In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, the Supreme Court of Canada reformulated the Dagenais/Mentuck test as follows:

...

1. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

2. the salutary effects of the ... order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

...

[10] In Vancouver Sun (Re), 2004 SCC 43, the Supreme Court of Canada decided that the Dagenais/Mentuck test applies to all discretionary decisions that limit the right to information during judicial proceedings. More recently, the Supreme Court of Canada reaffirmed at para. 13 in Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, that “[t]he analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect the openness of proceedings...” Further, as no arguments were presented to me in support of the public’s interest in the openness of these proceedings, I must take account of that interest without the benefit of argument: R. v. Mentuck, 2001 SCC 76, at para. 38; Vancouver Sun (Re), at para. 48.

[6]  In dealing with such a request, I must act within the parameters that have been developed into what is known as the Dagenais/Mentuck test. The rule is that court and quasi-judicial tribunal proceedings are public and that documents on the record of those proceedings, such as exhibits, are also public. However, a court or quasi-judicial tribunal may impose limits on the accessibility to its proceedings or record in certain circumstances, when in its view the open justice principle should give way to a greater need to protect another important right. In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, the Supreme Court of Canada reformulated that test as follows:

...

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the ... order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

...

[7]  In Vancouver Sun (Re), 2004 SCC 43, the Supreme Court of Canada decided that the Dagenais/Mentuck test applies to all discretionary decisions that limit the right to information during judicial proceedings. In Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3 at para. 13, it reaffirmed that “[t]he analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect the openness of proceedings.”

[8]  Furthermore, as no arguments were presented to me in support of the public interest in the openness of these proceedings, I must take account of that interest without the benefit of argument; see R. v. Mentuck, 2001 SCC 76 at para. 38; and Vancouver Sun (Re), at para. 48.

[9]  Therefore, I find that sealing the grievor’s medical file and all related medical reports is necessary to prevent a serious risk to her privacy interests and that the salutary effect of the order on the efficacy of the administration of justice outweigh its deleterious effects on the right to free expression, including the public interest in open and accessible court proceedings. Moreover, not sealing them would be of no benefit to the merits of this decision. Accordingly, the grievor’s medical file and related medical reports are ordered sealed.

II. Background

[10]  The grievor holds an honours degree in arts from the University of Regina and an LLB from the University of Ottawa. In 1993, she articled at the Ministry of the Attorney General and was called to the bar in 1994. She then worked at the Indian Friendship Centre of Toronto on indigenous issues. In the fall of 1996, she accepted an LA-01 term position with the Department of Justice (DOJ), which was seeking representation from the aboriginal community. Shortly after that, she applied for and was appointed to an indeterminate LA-2A position providing advice on issues involving land-claims negotiations for Indian and Northern Affairs Canada (INAC), as it was then known.

[11]  The employer called Dal Hines, Director, CAP, at the PSC in 2001. He explained that the program was part of “La Relève”, a federal government initiative aimed at increasing the visibility of equitable groups in executive positions. For the first time, the federal public service wished to create opportunities for aboriginal employees to advance to the executive level. The CAP was advertised internally and externally. Over 1100 applied, and 200 were screened in. All departments were invited to participate. Those that decided to were canvassed on the positions they would create. The DOJ did not participate. It did not create any CAP “CA” positions.

[12]  The Treasury Board Secretariat of Canada (TBSC) owned the initiative, and the PSC managed it. The Canada School of Public Service (CSPS) was responsible for the participants’ language training. The TBSC determined the policies, and the PSC managed the program. Participating departments would host the participants and provide them with assignments to gain executive experience to eventually pre-qualify for an EX-01 position.

[13]  Among other responsibilities, the PSC was responsible for establishing competence standards for entry, promotion, and EX-01 PQP. It was also responsible for developing tools and guidelines to identify, assess, and select participants; promote them while in the program; and to pre-qualify them as EX-01-ready at graduation. The program was a collaborative effort between the TBSC, the PSC, the CSPS, and the host departments. No single entity had full responsibility for the participants.

[14]  The grievor discussed the program with her colleagues and her network of aboriginal contacts. She viewed it as a positive step towards increasing aboriginal presence at the executive level. It was promoted as highly prestigious for obtaining executive experience; i.e., in budgeting, human resources, and French-language training, which were crucial to obtaining an executive position.

[15]  She was interested in the program for her career progression. However, she never wanted to give up her legal skills. She considered herself successful and was concerned by the fact that she would enter the program classified at a higher level than the positions it advertised.

[16]  There was a requirement to demonstrate aboriginal ancestry, and a cover letter and a résumé had to be provided to demonstrate experience and competencies. The PSC selected approximately only 23 to 26 as having a high likelihood of success. It was a large-scale promotional process for the government. It was celebrated, and the successful participants were considered elite. A career day and matching event was held at which departments approached the successful participants.

[17]  She knew that INAC would participate. Georges Bédard, one of her clients at the DOJ, mentioned to her that he would bring her strategic policy work involving aboriginal treaties. She was very interested because she had worked with him before in her LA-2A capacity and had extensive legal experience in that field.

[18]  For the first time, in the fall of 2010, she was informed that she could not return to her LA-2A position. She was extremely upset and distraught. Her goal was to gain management experience. including in human resources and finance, as well as bilingual status, which would have given her the opportunity to apply for an LA-2B management position at the DOJ. She saw the CAP as a government promotion initiative specifically for aboriginal persons. She never understood it as a risk for regression in her career. In her view, it was designed for advancement. She never agreed to relinquish her LA‑2A position to participate in the CAP.

[19]  After she successfully completed the CAP requirements, the grievor participated in a PQP at Environment Canada for the EX-01 position she had successfully performed in for over a year. On December 3, 2010, she was informed that she had failed the knowledge question in the interview. In her view, had she been properly accommodated, she would have been appointed to the position. The only offer made to her was to reduce her from an LA‑2A to an EC‑07, which was extremely stressful.

[20]  She felt that she had been left behind and that the CAP had let her down. She had worked hard to become a lawyer, especially as an aboriginal person in a group that was already underrepresented. On March 11, 2011, she filed her grievance alleging that she had been demoted unreasonably and without cause.

[21]  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 titles of the Public Service Labour Relations and Employment Board Act and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”). Note that in this decision, “the Board” refers to the current Board and all its predecessors.

III. Objection to the Board’s jurisdiction

[22]  The grievor referred her grievance to adjudication under s. 209(1)(c)(i) of the Act as a demotion under s. 12(1)(e) of the Financial Administration Act (R.S.C., 1985, c. F‑11; FAA) “... for any other reason that does not relate to a breach of discipline or misconduct ...” (see s. 209(1)(c)(i)). She maintained that the demotion was without cause, contrary to s. 12(3) of the FAA.

[23]  The employer agreed that there was no cause for the alleged demotion. Therefore, the Board does not have jurisdiction. It argued that there is no jurisdiction under s. 209 of the Act to assess Environment Canada’s selection process or to adjudicate the termination of the grievor’s participation in the CAP. She was deployed pursuant to s. 51 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA), which was a condition of her participation in the CAP. Jurisdiction cannot be acquired by a factual assessment that what occurred looks like a demotion in the general sense. In support of its position, the employer relied on Peters v. Treasury Board (Department of Indian Affairs and Northern Development), 2007 PSLRB 7 at para. 264.

[24]  Moreover, there is no material evidence that the deputy head demoted the grievor pursuant to ss. 12(1)(d) or (e) of the FAA. Therefore, the Board does not have jurisdiction under s. 209(1)(c)(i) of the Act. To acquire jurisdiction, the Board must find that a disguised non-disciplinary demotion occurred, along with evidence of the exercise of a delegated authority under ss. 12(1)(d) or (e) of the FAA. The grievor was deployed and should have filed a grievance pursuant to s. 209(1)(c)(ii) of the Act that she was deployed without consent where consent is required, or she should have filed a s. 77 complaint under the PSEA against the staffing process for the PQP.

[25]  There is no basis for this grievance and no jurisdiction to adjudicate under s. 209(1)(c)(i) of the PSLRA. As noted as follows in Chamberlain v. Treasury Board (Department of Human Resources and Social Development), 2013 PSLRB 115 at para. 122: “Where an employee files a grievance that included [sic] human rights allegations, but arises in a factual context that does not fall within s. 209(1), the PSLRA does not give the adjudicator jurisdiction to hear the grievance.” An alleged lost opportunity stemming from the selection process is unrelated to the allegation that INAC’s deputy minister demoted the grievor into a position classified one level lower than EX under ss. 12(1)(d) or (e) of the FAA. A lost opportunity, even if true, would not establish that INAC’s deputy minister effected a disguised demotion under the FAA.

[26]  The employer maintained that s. 77 of the PSEA is a complete framework for addressing internal appointment processes, including allegations of discrimination under the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA). It is not only an alternative procedure for redress; it is also the only administrative procedure for redress available to challenge the alleged lack of accommodation during the selection process. Section 208 of the PSLRA indicates clearly that where there is another avenue for redress, an employee may not present an individual grievance. For these reasons, the Board does not have jurisdiction.

[27]  The grievor maintained that the Board has jurisdiction over both disciplinary and non-disciplinary demotions, as outlined at ss. 209(1)(b) and (c) of the Act. If it is found that she was demoted, it would be appropriate for the Board to take jurisdiction over this grievance as a demotion “... for any other reason that does not relate to a breach of discipline or misconduct ...”, under s. 209(1)(c)(i).

[28]  In the grievor’s view, “it is trite law that the label that the employer has given to its action is not determinative of the nature of the action”. As the Supreme Court of Canada held in Doré v. Canada, [1987] 2 SCR 503 at 510, adjudicators are required to look behind the employer’s intention or characterization of an action to determine on the facts what actually occurred.

[29]  I disagree with the employer’s position that the grievor’s only recourse was filing a grievance against her deployment or a staffing complaint under s. 77 of the PSEA. Such a complaint requires an internal appointment in the area of recourse. No appointment was made pursuant to the PQP about which the grievor could have filed a complaint. The documents that the employer referred to that dealt with her staffing complaint before the former Public Service Staffing Tribunal (PSST) and the letters from her counsel are irrelevant for the purposes of determining whether the Board has jurisdiction.

[30]  I agree with the grievor that it is trite law that the employer’s characterization of its action is not itself determinative as to whether it indeed demoted her. The Board’s jurisprudence, which the Federal Court of Appeal upheld in Bergey v. Canada (Attorney General), 2017 FCA 30; Canada (Attorney General) v. Heyser, 2017 FCA 113; and Canada (Attorney General) v. Féthière, 2017 FCA 66, determined that when it interprets s. 209 of the Act, it is up to the Board to determine, based on the facts of what occurred, whether a non-disciplinary termination was for cause. The same contextual analysis applies to cases involving alleged demotions under s. 209.

[31]  In cases of reliability status revocations, the Federal Court of Appeal stated that based on the relevant facts surrounding such a revocation and in light of the relevant policies enacted by TBSC as the employer, the Board must determine whether the revocation was for cause, which means inquiring into whether the revocation was based on proper and legitimate grounds (see Heyser, at para. 76).

[32]  The same approach was held to apply in cases involving interpreting s. 209(1)(c)(i) of the Act with respect to an employee’s demotion or termination in the core public administration under s. 12(1)(d) of the FAA for unsatisfactory performance or under s. 12(1)(e) for any other reason that does not relate to a breach of discipline or misconduct.

[33]  The PSLRB and Federal Court adopted that contextual approach in Canada (Attorney General) v. Frazee, 2007 FC 1176 at para. 23; and Robitaille v. Deputy Head (Department of Transport), 2010 PSLRB 70 at para. 226 (affirmed on that point in 2011 FC 1218 at paras. 34 and 35). In both cases, the PSLRB determined that it must examine what the employer objectively did as a matter of fact and not what it might have intended or understood it was doing as a matter of law when considering whether an employee was demoted, regardless of the employer’s preferred characterization of its action.

[34]  Therefore, to determine if the Board has jurisdiction under s. 209(1)(c)(i) of the Act, I must examine contextually the circumstances in which the alleged demotion occurred. If I find that the grievor was demoted, I must then determine whether it was done for legitimate reasons.

IV. What was the grievor’s status in the CAP?

[35]  Before determining whether the grievor was demoted, I must establish her status in the CAP.

A. CAP terms and conditions

[36]  Mr. Hines stated that his memory of the events in question dated back 15 years and that his recollection might not have been on point. At the time of the relevant events, he was the CAP’s director at the PSC. He was responsible for recruiting and assigning participants to the CAP. He was responsible for approximately three to four programs in total.

[37]  In cross-examination, Mr. Hines recognized that the TBSC established all the terms and conditions of employment, including salary, for CAP participants. The participants accepted into the CAP from outside the public service who did not occupy a classified position were to be appointed to indeterminate positions in the CA group. Once they completed the CAP, they were to be deployed to an EX-minus-one or minus‑two position, depending on the level they achieved during the program. In cross-examination, Mr. Hines agreed that a transfer had to be at-level to be considered a deployment.

[38]  Carey Agnew testified on the grievor’s behalf and stated that that was consistent with her understanding of the CAP. As an external candidate, she was appointed to a CA‑01 position with the possibility of advancing to a CA‑02 position. Her understanding was that had she opted out of the program, she would have been deployed to a position equivalent to CA‑01. Unsuccessful internal candidates were returned to their substantive positions. Unsuccessful external candidates were deployed to positions equivalent to CA‑01 or CA‑02.

[39]  Ms. Agnew explained that once candidates graduated from the program, the host department would use a PQP to assess and appoint them, without a selection process, to EX‑01 positions. The program was envisioned to take four years, with one year for language training. Ms. Agnew went on maternity leave in May 2002, November 2004, and July 2007. Once she graduated from the CAP in August of 2008, she was appointed to an EC-08 position at Health Canada, which was equivalent to an EX‑01 position.

[40]  Ms. Agnew never contemplated that she could end up in a position that she did not want to be in. The program’s focus was career improvement and the increased representation of aboriginals in executive positions. She recalled that the CAP considered it an asset if participants had law degrees. She had completed her law degree at the University of Toronto and had worked in the private sector, so she viewed the CAP as an advantage to develop competencies at the executive level. She agreed with public service values and embraced the idea of a more realistic work-life balance. The program’s ultimate goal was for participants to achieve an executive position. The CAP was advertised as all reward and no risk.

[41]  Mr. Hines did not have an organizational relationship with the grievor. He was aware that when she applied to the CAP, she was an LA-2A with the DOJ at Aboriginal Affairs and Northern Development Canada (AANDC), as it was called, and that there was an agreement that she would retain her salary and conditions of employment as an LA-2A while in the CAP. Her circumstances were unusual because her substantive position was at a higher level of pay and at a higher classification than the CAP position.

[42]  As the CAP’s director, he had the authority to accept the grievor in the CAP on a “Special Assignment Pay Plan” policy (SAPP), which allowed her to maintain her designation as an LA-2A, with salary protection. According to him, the TBSC had conferred on him only that authority. The SAPP applicable at the time provided deputy heads with flexibility, within the public service compensation system, in recruiting, assigning, and compensating employees.

[43]  The SAPP indicated that candidates for SAPP assignments would be provided with written assignment offers detailing the nature, location, duration, and conditions; the steps to take to regularize their employment status after completing their assignments; and the department responsible for implementing those steps. All conditions and entitlements specified in a collective agreement or compendia applicable to the employee’s certified group and level would continue to apply once assigned under the SAPP.

[44]  The grievor understood that the SAPP was confirmation that she was participating in the CAP as an LA-2A with all associated terms and conditions of employment and obligations. She understood that she was still obligated to maintain her status with the Law Society of Upper Canada, to file her annual report, to continue her legal education, and to remain in good standing. She did not stop being a lawyer.

[45]  In cross-examination, Mr. Hines agreed that the CAP policy, which was applicable at the time, indicated at page 4 that the terms and conditions of employment that applied to the CA group were those specified in the TBSCs Terms and Conditions of Employment policy in Appendix A, “Public Service Terms and Conditions of Employment Regulations”, and in the PA collective agreement.

[46]  However, the letter sent to the grievor on February 1, 2001, with the subject line “Career Assignment Program – CA‑01 - 11319 200004CA‑01 – Bilingual Non-Imperative CBC/CBC Indian and Northern Affairs Canada, NCR”, specified that during the relevant period, she would retain her indeterminate LA-2A status and that all related terms and conditions of employment would continue to apply.

[47]  In cross-examination, Mr. Hines agreed that if the terms and conditions of employment applicable to the LA group changed, then those terms and conditions of employment would have continued to apply to her for the duration of the program.

[48]  The grievor confirmed that the offer letter’s contents represented exactly what she had discussed with Kim Brandt, her PSC learning advisor while she was in the CAP, which was that all the terms and conditions of her LA-2A position would continue to apply and that she would retain her indeterminate LA-2A status during her CAP participation.

[49]  After her participation ended, if she did not qualify for an EX‑01 position, the offer letter indicated that as an incumbent of a CA position, she agreed to be deployed to a position for which she qualified at the EX‑minus‑one or EX‑minus‑two level, depending on the level she achieved in the program. In cross-examination, Mr. Hines indicated that that was a standard page and that all CAP participants received it.

[50]  Because the grievor entered the program classified LA‑2A and because she retained all her terms and conditions of employment, including her indeterminate LA‑2A status, and given the fact that she had not been appointed from outside the federal public service, she understood that she was not bound by the same terms and conditions as those who had entered the program at the CA level.

[51]  The grievor stated that she could not be bound by the LA‑2A conditions of employment at the same time as she was bound by those applicable to CAs. She disregarded the second page of the offer letter because it did not make sense. It was completely illogical that she would retain her indeterminate status with all terms and conditions of employment as an LA‑2A and at the same time be subjected to CA provisions. She was not a CA.

[52]  The offer letter provided that mandatory language proficiency in the second official language had to be completed within two years from the date of appointment to the CAP. If she did not achieve the required proficiency, she would not be retained in the CAP. By accepting the offer, she agreed to be deployed to another position for which she was qualified.

[53]  The offer letter informed her that Ms. Brandt would be her PSC learning advisor while she was in the CAP. By signing it, she accepted the offer on February 1, 2001, and was appointed to a senior policy advisor position at INAC.

[54]  According to Mr. Hines, at that point, she was no longer a DOJ employee. On accepting the offer, she became an INAC employee covered by the PSEA. The signed letter was sent to INAC and Jocelyne MacDonald, Associate Director, Executive Services and Special Programs, DOJ, all of whom agreed with the terms and conditions it contained.

[55]  The grievor stated that before accepting the CAP position, she expressed her concerns to Ms. Brandt. She did not want to lose what she had already achieved, her LA-2A position. She discussed pay, benefits, the type of work she did, and her education. She asked if she could apply for executive competencies and maintain her LA-2A classification. Ms. Brandt told the grievor that she would need to discuss it with Mr. Hines, the CAP’s director.

[56]  After consulting with Mr. Hines, Ms. Brandt informed the grievor that it was possible to maintain it. Not only would she maintain her salary, but also, she would maintain her classification and benefits. She made it clear to Ms. Brandt that she did not want to go backwards in her career. This took place early in the fall of 2000.

[57]  Mr. Hines stated that learning advisors in the CAP did not have any authority under the PSEA to appoint; nor did they have any financial authority. Their role was to create a learning plan for the CAP participants and to help them with their needs. Only the departments had the delegated authority from the PSC to make appointments. Mr. Hines did not recall the details of the grievor’s offer letter or a promise that should she leave the program, she would return to her former LA-2A classification.

[58]  The grievor recalled things differently. She remembered sitting in her office at her desk when Mr. Hines phoned her to confirm that if she were assessed successfully, she could participate in the CAP at her substantive level. It was open to the host department to choose an EX-01 position at the LA-2A group and level. She informed him that it was important for her to have that in writing. She told him that her goal when she completed the CAP was to return to her LA-2A position with leadership experience, so that she could obtain an LA-2B position. Her hope was that the experience she would gain in the CAP would fast-track her into that position. The terms and conditions under which she agreed to participate in the CAP were important to her, which was emphasized to Mr. Hines and the PSC.

[59]  Mr. Hines explained that the purpose of the CAP was to raise all the participants to the EX level. The SAPP protected the grievor’s indeterminate status as an LA-2A and provided the possibility that she would be deployed to an LA-2A position if the DOJ had one available. Her status would already be protected, and no problem would arise, if a position existed. In cross-examination, he agreed that the SAPP was more than simply salary protection. It protected the terms and conditions of her employment as well and covered her membership fees with the Law Society of Upper Canada.

[60]  Mr. Hines did not recall any conversations with the grievor about what would happen if things did not work out. There were no guarantees as to what the end game would be. He recalled that a number of successful participants were appointed to EX-01 positions and that others remained at the CA level. Even had the PSC wanted to offer some sort of guarantee, it could not. A memorandum of understanding of some sort would have been required between the DOJ and INAC as the participating department. But because the DOJ was not a participating department, nothing could be done. Had there been such an understanding, it would have been made in writing.

[61]  In cross-examination, Mr. Hines stated that he did not recall the grievor expressing concerns to him directly over her ability to return to her LA-2A position. The only concern that he was aware of was that she entered the program at a very high level, which was why he took the steps he did to protect her salary. In redirect, he indicated that if her goal had been to return to her LA-2A position at the DOJ or to have the option of returning to it, a tripartite memorandum of understanding would have been required between the grievor; INAC, as the sponsoring organization; and the DOJ, which would have been responsible for taking her back.

[62]  The employer called Carole Proulx. At the time of the relevant events, she was the CAP liaison officer at INAC responsible for language training, promoting the program, and the appointment process in general. She did not have the delegated authority to appoint or to make offers to appointees. She understood that the agreement between INAC, the PSC, and the grievor meant that the grievor was an INAC employee. Her view was that the senior policy advisor position that the grievor was appointed to in the CAP, in the Comprehensive Claims Policy and Comprehensive Claims Section, was an indeterminate position and that the grievor had been appointed to it under the PSEA.

[63]  Ms. Proulx did not recall the email the grievor sent to her on April 3, 2002, about an agreement with the DOJ that her substantive position with it would be saved for her and that she would move into the CAP with DIAND, as it was at the time, as the host department.

[64]  The email summarized the grievor’s understanding at the time that her salary would be protected by a SAPP at the LA-2A group and level and that her LA-2A position would be saved so that she could have the option of returning to the DOJ as an LA-2A if she so desired to possibly seek LA-2B opportunities. Ms. Proulx did not recall the email or the grievor’s request to not have any arrangement to transfer her personnel file from the DOJ to DIAND. If the grievor and the DOJ had an agreement, Ms. Proulx was unaware of it.

[65]  The grievor testified that she never received a response from Ms. Proulx or anyone at the PSC correcting her understanding. Throughout her time in the CAP, the grievor recalled continuously having to reach out to the host department to remind them about her terms and conditions of employment and the reimbursement of her law society fees.

[66]  In Ms. Proulx’s view, the PSC had no authority to order the DOJ to return the grievor to her substantive position. Once she was accepted in the CAP, she relinquished her substantive position. If such an agreement were made, it would have been in writing between the DOJ and DIAND. She did not recall the document entitled “Special Assignment Pay Plan Rationale - Extension Beyond Three Years” and for the February 12, 2001, to February 8, 2005, time frame, and the extension request from February 9, 2005, to March 31, 2007, which provided that the grievor would return to her substantive position when she completed the CAP (“the SAPP extension document”; Exhibit E‑11). Ms. Proulx pointed out that the document was unsigned and undated. She did not recognize the names on it. Her only understanding was that the grievor’s salary and her terms and conditions of employment at the LA-2A group and level were protected for the duration of her participation in the CAP. She is unsure as to how that document was included in the grievor’s personnel file.

[67]  In cross-examination, she agreed that the rationale for the request to extend the SAPP beyond three years indicated that not only did the grievor retain her indeterminate LA‑2A status and that all related terms and conditions would continue to apply until she completed the CAP’s requirements, but also that she would be deployed to the DOJ when she completed it. In redirect, Ms. Proulx indicated that if that were so, she would have brought it to management’s attention at DIAND and would have requested that the DOJ pay for the grievor’s language training.

[68]  In cross-examination, Ms. Proulx stated that she was not aware of any discussions between Louise Trépanier, Director General, Comprehensive Claims Section, INAC in 2001, and the DOJ. She agreed that she had not been involved in discussions of the grievor’s concerns. She was not aware of any discussions or special agreement between the DOJ and INAC. Had one been made, it would have been included in the offer letter. She was not involved in negotiating or arranging the SAPP for the grievor.

[69]  In an email from Ms. Proulx to Ms. Trépanier, dated March 1, 2002, it is clear that confusion arose in the financial responsibilities between DIAND, as the host department for the grievor’s first assignment, and the DOJ. Ms. Trépanier erroneously believed that DIAND would reimburse the grievor’s salary to the DOJ and that DIAND would be responsible for all other work-related expenses.

[70]  The employer called Cindy Shipton-Mitchell, Senior General Counsel, Finance - Legal Services, DOJ. She was the general counsel for the Comprehensive Claims Section from 1999 to 2003. She was the grievor’s manager and was responsible for approving the grievor’s performance appraisals. She testified that she did not recall any special arrangement or any conversations with the PSC about the grievor keeping her position while she occupied a CA position in the CAP. She was not involved in the discussions of the grievor’s participation in the CAP. For the grievor to have benefitted from such an arrangement, it would have been a secondment, which would have been in writing. The departmental PeopleSoft document (Exhibit E-37) indicates that the grievor’s position, number 1899, at the DOJ was terminated as a result of a “Transfer Out” on April 24, 2014. As will be described later in the evidence, the grievor testified that she became aware of that for the first time in November 2010.

[71]  The employer called Carole Langevin, Executive Resourcing Advisor for the Executive Group Services Directorate, INAC, in 2010. According to her, it had been made clear to the grievor long before November 2010.

[72]  In cross-examination, Ms. Langevin could not explain how the TBSC’s Directive on the Administration of Leadership Development Programs and the “Salary Protection” provisions it contains (Exhibit E-14) could apply to the grievor when she was accepted in the CAP under the SAPP that indicated that the terms and conditions of her LA‑2A substantive position would continue to apply to her while in the CAP. Ms. Langevin indicated that she could not answer that question because she was not involved at the time of the grievor’s acceptance into the program in 2001.

[73]  The grievor called Ms. Kim Brant as a witness. As a learning advisor, her role was to develop and implement the CAP. Before accepting her learning advisor position, she worked on the CAP’s intake aspect, developing the exam, and the in-basket exercise with the PSC’s Personnel Psychology Centre (PPC), as well as placing and training the successful applicants. She was the chairperson of the assessment boards and was involved in the decision-making process to determine the positions the candidates would be matched to. She was aware of the grievor’s situation, which she recalled was unique in that she came to the CAP as an LA-2A. There was a concern to not penalize and exclude applicants who arrived classified at higher levels, such as scientists or psychologists. The intent of the CAP was never to penalize applicants. The PSC made appointments to positions from an eligible list of candidates.

[74]  Ms. Brant recalled that Thomas Paul, Deputy Minister, INAC, was responsible for the intake of participants in the CAP at INAC (Exhibit E‑03). Ultimately, the PSC could do very little. Mr. Paul had a discussion with the DOJ. The PSC issued the offer letter to the grievor, which the DOJ had to agree to. Because she could not be appointed to a CA position at a lower rate of pay, the only solution was the SAPP at the LA‑2A group and level.

[75]  In Ms. Brant’s human-resources experience, any time an employee accepts a lower position, it represents a demotion. A 4% salary difference constitutes a demotion. The position number referred to in the SAPP represents the grievor’s position at the DOJ; it is a DOJ position number (Exhibit E-03). Ms. Brant stated that she had no role in the offer letter. She had simply been responsible for day-to-day functions. She would present things, which would be approved and then implemented. She agreed that the grievor was appointed to a position at INAC. At that time, only the DOJ could appoint lawyers.

[76]  Ms. Brant did not agree with Mr. Hines that the grievor was appointed to a CA‑01 position and that she was simply salary-protected at her LA-2A salary. Nor did she agree that as the director of the PSC, he did not have the authority to appoint candidates to departments and that his only authority was to create a SAPP. He issued appointment letters on behalf of departments. She understood that the grievor was appointed to an LA-2A position, which is why she had the same position number as that of the position she held at the DOJ. That department was not willing to appoint her to a CAP position because it did not participate in the CAP. INAC took the grievor on at-level, with the understanding that the DOJ would take her back once she completed the CAP. Normally, when on a SAPP, incumbents are returned to their substantive positions unless it is determined otherwise. This was a concern for INAC because it could not appoint anyone to an LA position.

B. The grievor’s arguments

[77]  The grievor argued that she was induced into accepting the offer letter to participate in the CAP based on a misrepresentation of the terms and conditions of employment in it. The PSC took measures to ensure that her terms and conditions of employment as prescribed in the LA group collective agreement would continue to apply to her for the duration of her participation in the CAP. This was done through a SAPP.

[78]  The CAP was marketed as all reward and no risk. She was never informed that there was a risk that she could come out of it at a lower level unless she negotiated an agreement. If it was a real possibility, it was never discussed with her. Nor was she informed that she had to relinquish her LA-2A position.

[79]  Regardless of whether that was intentional, she argued that she could not be bound by the clause in the offer letter that stipulated that as an incumbent of a CA position, she agreed “... to be deployed to a position for which [she qualified] at the EX-minus-01 or EX-minus-02 level, depending on the level achieved while on the program.” It is fundamental to contract law and inconsistent to hold an individual to a contract when an exception was specifically negotiated. The offer letter must be read in the context in which it was negotiated as a whole.

[80]  In support of her position, she relied on the British Columbia Court of Appeal’s findings in Zippy Print Enterprises Ltd. v. Pawliuk, 1994 CanLII 1756 at paras. 41 and 42. The Court determined that one party cannot make an intentional oral representation designed to persuade another party to enter into a standard form contract and then, by invoking the parol evidence rule, rely on the fact that the contract is in writing to escape liability flowing from the fact that the representation was untrue.

[81]  In those circumstances, the oral representation will be considered an essential element in the relations between the parties, either on the basis that the written contract document was not intended to form the entire agreement, or alternatively, on the basis that the oral representation, when the person to whom it was made entering into the written contract acted on it, became a separate contract on which liability may be founded.

[82]  In interpreting the offer letter and establishing her status in the CAP, the grievor argued that the parol evidence rule and the case law are clear. The rule does not exclude evidence of the context in which the parties came to an agreement. In interpreting the offer letter, the Board must look at the circumstances and the context in which it was accepted. The Board must be open to the possibility that a person was induced to enter into a contract based on a misrepresentation. Somewhere along the way, people involved in the CAP came and went. Someone dropped the ball and did not follow up with the DOJ to obtain its signature (Exhibit E-11). There was no legal basis to deploy the grievor to a lower-level position.

[83]  In S.M. Waddams, The Law of Contracts, 6^th edition, at page 249, the author indicates that even an innocent misrepresentation of the effect or content of a document or conduct that “gives a false impression” is sufficient basis for relief.

[84]  In Mendelssohn v. Normand Ltd., [1970] 1 QB 177 (CA), a 1970 decision of the English Court of Appeal, the Court found as follows at pages 183-184:

...

There are many cases in the books when a man had made, by word of mouth, a promise or a representation of fact, on which the other party acts by entering into the contract. In all such cases the man is not allowed to repudiate his representation by reference to a printed condition ... nor is he allowed to go back on his promise by reliance on a written clause ... The reason is because the oral promise or representation has a decisive influence on the transaction – it is the very thing which induces the other to contract – and it would be most unjust to allow the maker to go back on it. The printed condition is rejected because it is repugnant to the express oral promise or representation.

...

[85]  Had this been made clear to the grievor, she would not have participated in the program, which was marketed as an opportunity to advance her career and increase the presence of indigenous persons at the executive level.

C. The employer’s arguments

[86]  No special arrangement was made with respect to the grievor’s substantive position. Even had one been made, the Board would not have jurisdiction. Any suggestion that a special arrangement had been made is unfair. Not everyone is successful at the end of the day in such programs. The offer letter was the result of the exercise of the delegation of authority, over which there is no jurisdiction to adjudicate. The grievor was not inexperienced. If she understood that she would maintain her substantive position, she should have insisted that it be put in writing.

[87]  The parole evidence rule provides that a side deal will not be enforced when dealing with sophisticated parties. The grievor did not testify that a specific person at the DOJ promised her that she could return to her substantive position once she completed the CAP. The only evidence relied upon to demonstrate the existence of a side agreement is an unsigned pay note (Exhibit E-11). There was no evidence of the exercise of a delegated authority to support the existence of such an agreement. In support of its position, the employer relied on Panagopoulos v. Canada, [1990] F.C.J. No. 234 (QL); and Kravchenko-Roy v. Canada (Attorney General), 2007 FC 1114.

[88]  The PSEA provides formalities to be followed with respect to offer letters. The employer relied on Fode v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 105; and Professional Association of Foreign Service Officers v. Treasury Board (Department of Foreign Affairs and International Trade), 2001 PSSRB 132, for the proposition that these cases talk about promises, they are not ad hoc, there are formalities to be followed per the PSEA, and only what is in the offer letter will be upheld.

[89]  In the grievor’s case, Ms. Brant did not have the delegated authority to make such promises. She was not involved in any special arrangement. She did not see and did not have a role in drafting the offer letter. Mr. Hines and Ms. Proulx both testified that that letter was a clear indication that the grievor was moving from one position to another in a different organization. When she signed it, she became an INAC employee.

[90]  The email to the grievor from Michael Cavanagh, Director of the CSPS, should be given no weight. He did not have the authority and was not part of the discussions surrounding the offer letter. The email is extremely prejudicial. The grievor could have asked for the Board to order his contact released from the pension centre so that she could call him as a witness.

D. Conclusion

[91]  I do not agree with the employer’s characterization of the evidence. I conclude that the offer letter and the SAPP were indeed deviations from the CAP policy. Although it is clear that that letter specified that the grievor could be appointed to an EX-minus-one or minus-two position depending on the level she achieved in the CAP, the SAPP was more than salary protection. It protected her terms and conditions of employment as an LA-2A but was silent on the measures to be taken to regularize her employment status after she completed the CAP, along with the department responsible for implementing those measures.

[92]  I agree with the grievor. Someone at the PSC dropped the ball and failed to follow up on the representations made to her. I conclude that the SAPP extension document (Exhibit E-11), which provided that the grievor would return to her substantive position after completing the CAP, is evidence that those representations were made.

[93]  The full name of the SAPP is “Special Assignment Pay Plan”, which is another clear indication that the grievor was on assignment. The DOJ was copied on all correspondence, and it had to agree to all terms and conditions as the grievor was an employee of the DOJ. Moreover, there was confusion as to the DOJ and DIAND’s responsibilities as the host department for the grievor’s first assignment. The ongoing communication between both departments is at the very least an indication that the grievor still had ties with the DOJ. Based on that evidence, I am not convinced that she knowingly relinquished her LA‑2A position. If so, it should have been clearly communicated to her.

[94]  The offer letter contains no specific information to that effect. All the documentation refers to assignments in the CAP. The full name of the CAP is the Career Assignment Program. The evidence clearly established that the grievor accepted an assignment as a senior policy advisor with INAC while maintaining her LA-2A terms and conditions of employment. The PSC and INAC knew that she never intended to relinquish her LA-2A position. She made it clear to the PSC that her participation in the CAP was conditional upon her keeping her substantive position. I accept her testimony on this point. While Mr. Hines and Ms. Proulx could not recall any discussions with respect to the grievor’s return to her substantive LA‑2A, neither denied that these discussions may have taken place. Moreover, the grievor’s testimony is consistent with the documentary evidence highlighted below.

[95]  The email sent to Ms. Proulx in April of 2002, which summarized the grievor’s understanding that her salary would be protected by a SAPP at the LA-2A group and level and that her LA-2A position would be saved, clearly demonstrates that somehow, she was led to believe that it was open to her to return to her substantive position at the end of the CAP. This is also supported by the email exchange between Ms. Proulx and Ms. Trépanier, dated March 1, 2002, and the confusion around the DOJ and DIAND’s financial responsibilities as the host department for the grievor’s first assignment. The SAPP extension document (Exhibit E‑11), which provided that the grievor could return to her substantive position after completing the CAP, indicates that the DOJ and INAC discussed her returning to her LA‑2A position once she completed the CAP.

[96]  Although that possibility never materialized because the document was never signed, it is, at a minimum, confirmation of the grievor’s understanding that she could return to her substantive position after completing the CAP. The PSC was responsible for administering the CAP and appointing its participants. It was also responsible for ensuring that INAC and the DOJ signed the SAPP extension document. If the DOJ refused to sign the agreement, the PSC should have informed the grievor.

[97]  I also find compelling Ms. Brant’s testimony that INAC took the grievor on at-level, with the understanding that the DOJ would take her back after she completed the CAP, and that normally, incumbents on a SAPP are returned to their substantive positions unless it has been determined otherwise.

[98]  In the context of all the evidence, Ms. Brant’s testimony is most credible because it is consistent with Mr. Cavanagh’s evidence (which is described later in this decision) and the SAPP extension document, which provided that the grievor would return to her substantive position after completing the CAP (Exhibit E-11). Ms. Brant confirmed that the grievor could not be accepted in the program at a lower level because a 4% difference in salary is considered a demotion. This was the rationale for the SAPP.

[99]  Throughout the grievor’s participation in the CAP, at no time did the PSC or DIAND inform her that she could not return to her LA‑2A position. As will be seen later in the evidence, Mr. Cavanagh, the former director of the CAP at the PSC, confirmed as much in an email sent to her in February 2011. To some extent, Mr. Hines also confirmed it, specifically when he stated that the SAPP was to protect the grievor’s indeterminate status as an LA‑2A with a possibility that she would be deployed to an LA-2A position if the DOJ had one available; her status would already have been protected, and there would have been no problem, had a position existed.

[100]  As will be described later in the evidence, the grievor had multiple contacts with the PSC on this issue. However, only in November of 2010 was she informed that she could not return to her substantive position. INAC was not aware of her status. Ms. Langevin had to make multiple inquiries in response to her questions.

[101]  Moreover, Ms. Langevin could not explain how the Directive on the Administration of Leadership Development Programs and its salary protection provisions (Exhibit E-14) could have applied to the grievor when she was accepted into the CAP under a SAPP that indicated that the terms and conditions of her LA‑2A substantive position would continue to apply to her while she was in the CAP. Ms. Langevin indicated that she could not answer that question because she was not involved at the time of the grievor’s acceptance into the program in 2001.

[102]  For these reasons, I conclude the grievor was on assignment during her participation in the CAP. Throughout her participation, she performed CA functions while maintaining her LA-2A terms and conditions of employment. This is consistent with Mr. Hines’s evidence that her terms and conditions of employment were specified in the LA collective agreement and that they continued to apply to her for the duration of her participation in the CAP. Any changes to the LA collective agreement would have applied to her.

[103]  Moreover, her law society fees were consistently reimbursed. All practising lawyers must pay them to maintain good standing. At all material times, I find that she did not stop being a lawyer and that she did not knowingly relinquish her substantive LA-2A position. This is supported by the “Notification of Consideration” that INAC posted, which indicated that she was appointed to the EC-07 position in February 2011 from her previous LA-2A position (Exhibit G-50). In light of all the evidence, it would be unconscionable for me to hold her to the wording in the offer letter.

V. Analysis

A. Was the grievor demoted?

[104]  Section 209(1)(c)(i) of the Act identifies a demotion as an action taken by the employer pursuant to s. 12(1)(d) of the FAA for unsatisfactory performance or under s. 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct.

[105]  Section 12 of the FAA states the following with respect to demotion:

Powers of deputy heads in core public administration

12 (1) Subject to paragraphs 11.1(1)(f) and (g), every deputy head in the core public administration may, with respect to the portion for which he or she is deputy head,

...

(d) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service whose performance, in the opinion of the deputy head, is unsatisfactory;

(e) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service for reasons other than breaches of discipline or misconduct ....

...

[106]  It is well established that an inquiry into whether a demotion has occurred is a factual exercise that examines the specific circumstances of a grievance to determine whether the facts at issue meet the legislative meaning of “demotion”, as described in ss. 12(1)(d) and (e) of the FAA. This approach was adopted in Peters, at para. 264, as follows:

[264] ... An adjudicator must take the fact that paragraph 92(1)(b) cross-references paragraph 11(2)(g) of the FAA as a binding indication that Parliament intended that the concept of demotion must, for purposes of determining an adjudicator’s jurisdiction, relate to the exercise of authority pursuant to paragraph 11(2)(g) of the FAA. To the extent that jurisprudence interpreting the exercise of authority pursuant to paragraph 11(2)(g) of the FAA has defined what a demotion is, an adjudicator must apply the law accordingly.

[107]  Although Peters was rendered under the Public Service Staff Relations Act (R.S.C., 1985, c. P-35) and the applicable FAA at the time, s. 209 of the Act and s. 12 of the FAA, dealing with demotion, remained the same in their essence.

[108]  Within this framework, I must determine whether a demotion occurred, regardless of the employer’s characterization of its actions.

B. Assignments within the CAP

1. First CAP assignment

[109]  Following the career day and matching event held on January 11 and 12, 2001, the grievor was extended an offer for an assignment as a senior policy advisor in the Claims and Indian Government Section at INAC (see Exhibit G‑7). It was from February 12, 2001, to February 12, 2002. Ultimately, it was extended to March 12, 2002, to coincide with the grievor’s language training.

2. Second CAP assignment

[110]  After completing language training and returning from maternity leave, from 2006 to 2008, the grievor looked for a second assignment. She asked the Acting Associate Deputy Minister of Aboriginal Affairs at that time if she would agree to a mentoring network relationship and to see if there were any potential assignments for the grievor. She indicated that she would speak with the grievor’s director general about a possible assignment. Given the grievor’s prior difficulties with language training, she indicated that she would be interested in deploying back to her LA‑2A position. Although she was happy to have achieved a senior executive level, she felt it had been a difficult experience. She was unhappy and wanted to return to her substantive LA‑2A position.

[111]  The grievor contacted Line Bernard, Director of Strategic Policy, INAC, whom she knew had a client relationship with the Residential Schools program at the DOJ. She inquired about possibly deploying back to her LA‑2A position while she continued looking for her second CAP assignment.

[112]  On January 16, 2008, the grievor was in contact with Deborah Friedman, Acting Director, DOJ. Ms. Friedman was responsible for the Residential School programs. She informed Ms. Friedman that she achieved a CBC level in French in late July 2007 and that she wanted to leave the CAP and return to her substantive LA‑2A position (Exhibit G-14).

[113]  Ms. Friedman put her in contact with Al Broughton, Senior Lawyer, DOJ, to discuss the Residential Schools LA-2A profile position. Mr. Broughton mentioned that there would be a significant amount of overtime and long hours given the profile of that particular file. For personal reasons, the grievor determined that it was not suited to her current ability to take it on. Therefore, she continued searching for another assignment as part of the CAP.

[114]  From May 26, 2008, to May 26, 2009, the grievor undertook her second assignment as part of the CAP with Public Works and Government Services Canada (PWGSC). It consisted of developing contracts, service standards, and performance measures within PWGSC. She understood that the PL had replaced the CA classification in the CAP. The PL-05 level had replaced the CA-01 level. She never received any paperwork or official letter informing her of that change. She received only a copy of the CAP assignment plan/review (Exhibit G-15).

[115]  Michael Cameron, Career Assignment Advisor in the CAP, assessed the grievor’s competencies and experience. It was determined that she met the executive competencies of a PL-06, the equivalent of the former CA-02. Before participating in any EX appointment process in the CAP, all participants had to be assessed, for functional purposes. She never received a PL-06 offer letter from him. Although she had been assessed, she informed him that she would not sign off on a PL-06 position and that she had agreed to be assessed by that board only to demonstrate that she was EX-ready. She received no further response from him.

[116]  In cross-examination, the grievor recognized that although in her mind, she never formally moved to a PL-06 position, she did sign an agreement between Environment Canada and INAC on June 4, 2009, accepting her third assignment in the CAP to an acting director, aboriginal and stakeholder affairs, position in the Intergovernmental Affairs and Stakeholder Relations Section (Exhibit E-16). The agreement contained detailed information with respect to her terms and conditions of employment in the assignment. However, she continued to be covered by the LA‑2A terms and conditions of employment under the SAPP.

[117]  The employer called Line Lamothe to testify. She began her employment with INAC in 2007 as a director in the Executive Group Services Directorate. She was responsible for human resources planning and all fields pertaining to executives, including the CAP. She reported to the director general of human resources, who reported to the deputy minister. She was responsible for the CAP as of 2007, but she never met the grievor. At that time, she was aware that the grievor was still on language training and that her learning disability was being accommodated.

[118]  Ms. Lamothe recalled that the CAP positions had gone through a classification exercise and that they had been transitioned from the CA to the PL group. In cross‑examination, she acknowledged that the grievor did not participate in a PL‑06 promotion board. In redirect, she stated that the purpose of the CAP was to always move forward and that if the grievor did not sign the PL-06 promotion position offer in the CAP, then that would have been grounds for terminating her participation in the program.

[119]  On September 22, 2009, Ms. Lamothe received a direction from TBSC that the CAP was being phased out by December 2011 and that the Directive on the Administration of Leadership Development Programs would continue to apply. This meant that the transition of employees out of the program had to be completed by that time, in accordance with the host department’s transition plan. The TBSC indicated there would be no further recruitment or intake of entrants into the CAP and that central funding would no longer be available for participants in the CAP Moreover, the TBSC recommended that the last assignment for current participants be a placement at the onset of that assignment.

3. Third CAP assignment

[120]  In June of 2009, the grievor began her third assignment in the CAP. At that time she, INAC, and Environment Canada signed an agreement that provided the details of her assignment to Environment Canada. The agreement indicated that it would start on June 4, 2009, and continue for 12 months with an option for an extension, subject to the mutual agreement of all parties. She was to be assigned to carry out the duties of the acting director of aboriginal and stakeholder relations with Environment Canada, and she was to report to Daniel Wolfish, Acting Director General.

[121]  She was responsible for 13 staff members, new hires, performance evaluations, and a budget involving Aboriginal and Stakeholder Relations. Because of her experience with aboriginal law and her extensive experience with aboriginal files, she was viewed as the best candidate. She would be compensated at her current LA‑2A salary as per her SAPP while being assigned to the EX-01 position, which was consistent with the terms and conditions and salary administration of the leadership development programs group.

[122]  INAC was to continue to pay her LA‑2A salary and provide her benefits. Any salary increase she was due was to be paid pursuant to the Directive on the Administration of Leadership Development Programs - Management Trainee Program, Career Assignment Program. Consistent with previous assignments, it provided for a salary recovery scheme between INAC and Environment Canada, the host department, as well as objectives and expectations for her during the course of the assignment. The grievor, the host department, and INAC, as the sponsoring department, all signed the agreement. The position had no permanent incumbent.

[123]  On June 3, 2010, Environment Canada and INAC agreed to extend the grievor’s assignment from June 4, 2010, to December 3, 2010, or until she was successful in the prequalified process or was appointed to a position with Environment Canada. The extension agreement provided that she would continue to be paid in accordance with the SAPP while being assigned to an EX-01 position, which was consistent with the terms and conditions and salary administration of the leadership development programs group. Because she met the language requirements, she would continue to receive the bilingual bonus. The grievor’s LA-2A salary would continue to be paid by INAC and recovered from Environment Canada by quarterly invoice. At page 9 of her performance evaluation, it was indicated that she was EX‑01-ready (Exhibit G-17).

[124]  Ms. Langevin explained that to proceed from her LA‑2A position in the CAP to an EX-01 position, the grievor had to participate in an appointment process and receive an offer. The grievor had concerns with respect to leaving her LA‑2A position. It was a big decision, considering that she had been educated and trained as a lawyer. She understood that it was a position outside the law group, which was compensated fairly closely to an LA-2A salary and that there was room for career advancement at the EX‑02 level. She decided to contact Colleen Barrie, who had replaced Ms. Proulx as the CAP liaison officer at the PSC. The grievor wanted her file from the DOJ. She had questions about pay and benefits and wanted to be fully informed before participating in an EX‑01 appointment process. However, no one was available at the DOJ to help her.

[125]  In cross-examination, the grievor stated that the purpose of the March 3, 2010, meeting with Ms. Barrie and Ginette Danis from INAC was to discuss all the implications of leaving the LA-2A category for the EX category. Specifically, it was held to discuss pay, mutual obligations, and benefits related to leaving the CAP and entering the EX category. She was told simply that she could not return to the DOJ at that time because of a downsizing law-model review (Exhibit G-18). As per Ms. Shipton‑Mitchell’s testimony, the grievor’s substantive LA-2A position still existed at that time and was abolished only in 2014 (Exhibit E-37).

[126]  Ms. Langevin agreed that on April 27, 2010, the intent was to appoint the grievor to the EX-01 acting position she then occupied at Environment Canada (Exhibit G-20). Ms. Langevin informed her director general, Okenge Morisho, and the grievor that a PQP and Simulation for the Selection of Executives (SELEX) evaluation with the PSC would be set up. The grievor was informed that she would be appointed to the position if she chose to accept it after the assessment was complete. Ms. Langevin did not recall when the grievor’s CAP assignment would end; it was extended to complete the PQP.

[127]  The DOJ informed the grievor in writing that her salary at the LA-2A level had reached the maximum rate of pay in May 2004. In an email dated September 14, 2010, Ms. Langevin informed her of the contact person at the DOJ. She indicated that INAC and Environment Canada would participate in the PQP. The grievor requested confirmation as to the focus of the knowledge question.

[128]  In an email dated September 20, 2010, Ms. Langevin responded to the grievor’s request to meet with respect to her security clearance forms. In the email, the grievor indicated that it was mandatory for an LA-2A to have a secret security clearance and that it should never have been downgraded while she held an LA‑2A position in the CAP. Ms. Langevin indicated that she went above and beyond the norm to assist the grievor with these matters and that she did much of the legwork for the grievor.

C. Graduation from the CAP, and the PQP

[129]  Ms. Lamothe explained that Environment Canada asked INAC for support and direction to create a pre-qualifying pool for an EX‑01 position. Environment Canada was interested in appointing the grievor to the position she had been acting in for the past year-and-a-half at that point. The pre-qualifying pool was not a guarantee that she would obtain an EX-01 position. The only guarantee for her upon graduation from the program was an EX-minus-one or minus-two position. According to Ms. Lamothe, had the grievor pre-qualified for an EX‑01 pool, she could have been appointed to a position without a formal appointment process.

[130]  On October 1, 2010, the grievor contacted Carolyn Haskins at the DOJ about her file and her current situation. On November 9, 2010, Ms. Haskins confirmed that if the grievor accepted an EX-01 position, she would not be precluded from applying for LA positions in the future. Ms. Haskins explained that obtaining an EX position would demonstrate the grievor’s successful completion of the CAP and that it would confirm her progress.

[131]  The grievor reviewed her file. Everything was in order except for the SAPP agreement, which should have been renewed every three years. She was not concerned about it because she was still receiving her LA-2A salary, and her law society fees were being paid. The unsigned SAPP extension document indicated that once “... she completes the requirements under CAP ... she will be deployed to [the DOJ]” (Exhibit E‑11). Also in her HR file was a memo to the deputy minister dated April 26, 2010, indicating that a PQP was underway with Environment Canada and that she would be appointed once it completed.

[132]  Ms. Langevin indicated that the SAPP extension document (Exhibit E‑11) should not have been in the grievor’s personnel file because it was never signed. Marielle Doyon, Director General and Ms. Lamothe’s predecessor, did not sign it. She did not know who should have signed it off if Ms. Doyon had not wanted to. In cross‑examination, Ms. Langevin indicated that as per SAPP policy, a SAPP in the CAP had to be renewed every three years.

[133]  On November 9, 2010, Ms. Langevin recalled having multiple discussions with Ms. Haskins at the DOJ about the grievor. Ms. Haskins had no positions at the DOJ for the grievor to come back to. They had been in contact to obtain clarification for the grievor.

[134]  On November 15, 2010, for the first time, Ms. Langevin informed the grievor that she was no longer a DOJ employee but an INAC employee (Exhibit G‑25). The grievor was shocked and confused because the SAPP agreement and her offer letter mentioned that she had retained the terms and conditions of employment of her LA‑2A substantive position. Her prior conversation with Ms. Langevin was only about obtaining information about her file at the DOJ and was not about the fact that she was no longer a DOJ employee.

[135]  In cross-examination, Ms. Langevin disagreed. She indicated that many conversations took place about the grievor’s LA‑2A position and that November 15, 2010, had not been the first time the grievor was informed that she was no longer a DOJ employee.

[136]  Ms. Langevin’s email (Exhibit G-25) further indicated that Environment Canada was examining facilitating her appointment to an EX-01 and that it did not want to lose her. However, to pre-qualify, the grievor would have to submit to an interview. The email further stated that at that time, INAC was working on her deployment to an EX‑minus-one level position. She further indicated that as per the Directive on the Administration of Leadership Development Programs, the grievor would retain her salary protection for a maximum of two years, which was extremely stressful for her.

[137]  In the email, Ms. Langevin indicated that the grievor was at the CAP graduation stage and that she would need to resume her substantive position at INAC. Ms. Langevin explained that the CAP lasts 4 years and that the grievor had been in it longer than that. After 36 months of assignments, she was ready to graduate. Ms. Langevin explained that to regularize her out of the CAP, the grievor had to be interviewed through a PQP for an EX position. If she was unsuccessful in the PQP, then she would have been offered an EX-minus-one or minus-two position.

[138]  In cross-examination, Ms. Langevin explained that the PQP was not a position-specific process. It was a pre-qualifying interview to determine if a candidate was EX‑ready. Any department could recruit from a PQP.

[139]  As part of the CAP, to qualify as EX-ready, candidates had to participate in a SELEX process, which was governed by the PSC and a PQP. Once a candidate qualified for both, departments could decide to carry out further testing on knowledge of them. In the grievor’s case, Environment Canada was interested in her, which is why the knowledge question was general. According to the Statement of Merit Criteria (SOMC), the question attempted to evaluate knowledge of current government issues (Exhibit E‑25). The PQP was launched because the CAP was to end in 2011, and the grievor needed to be regularized out of it.

[140]  On November 25, 2010, Ms. Langevin requested a copy of the letter that Mr. Paul had sent to the grievor about the SAPP letter, in which she claimed that it was agreed that she could return to her DOJ position. Ms. Langevin did not recall receiving a copy of the letter (Exhibit G-28).

[141]  Before the PQP, the grievor participated in a SELEX assessment with the PSC’s PPC (Exhibit G‑33). It was an independent PSC assessment in preparation for the PQP at Environment Canada. It is a standard test that determines a candidate’s likelihood of success in meeting EX-01 competencies. Although it was not a requirement to graduate from the CAP, Ms. Langevin agreed the grievor performed well on it. It was determined that she would likely succeed (Exhibit G‑33, page 4).

[142]  In November 2010, Peter Marella, Director, Real Property Solutions, at PWGSC and an EX-02, provided a very positive reference for the grievor in the context of the PQP (Exhibit G-35). He was her director on her second assignment. In his view, she was well on her way to obtaining all EX-01 competencies.

[143]  Mr. Morisho, Director General, Intergovernmental and Stakeholder Relations, supervised the grievor in her third assignment, at Environment Canada. Her performance assessment from April 1, 2010, to February 28, 2011, indicated that she succeeded in all the leadership competencies (Exhibit G-57). Mr. Morisho viewed her as suitable for the EX-01 position she had been acting in. The performance assessment indicated that “... she is ready for an appointment at the EX-01 level” (Exhibit G‑36, page 9).

[144]  Ms. Langevin recalled that the grievor inquired about the knowledge question. The grievor wanted to know in advance if the question would be department specific or if it would encompass the Government of Canada. She agreed that the grievor needed confirmation to better prepare. In cross-examination, the grievor did not recall exactly what Ms. Langevin told her, but she did recall that it was the opposite of what she was initially told. In redirect, the grievor stated that Ms. Langevin indicated that the knowledge question would be focused on the Government of Canada as a whole and that she should reference things such as the speech from the throne and the parliamentary process.

[145]  Before the PQP, the grievor requested to be accommodated in the same manner she had been accommodated for her French-language exam. As indicated in a letter dated March 5, 2007, Dr. Paula Moncion, a registered clinical psychologist, provided an update to her May 2005 assessment (Exhibit G‑32). She reviewed the grievor’s prior learning assessment and her progress since her French-language training. She referred to the grievor’s learning disability and related anxiety and recommended that the French oral exam last no longer than 40 minutes, with a break halfway through the interview. She stated that the grievor needed more processing time. She further recommended that all questions be presented in a visual as well as auditory format and that the grievor be allowed time to pause and prepare before responding. Ms. Langevin knew that this document existed but had never seen it.

[146]  Ms. Langevin agreed that she had been responsible for all aspects of the PQP for INAC, as the host department. She indicated that the grievor was provided with the requested accommodation and more because nobody wanted trouble from her. Through her immediate supervisor, Ms. Langevin was verbally informed that the grievor needed accommodation, including seeing the questions in advance and having more time to prepare.

[147]  In cross-examination, Ms. Langevin agreed that she had been responsible for ensuring that the grievor’s accommodation needs were met. She further indicated that she was not familiar with the grievor’s psychological language assessment report because it had been produced before her time at INAC. She was not aware the grievor required a quiet place to work and write exams, to minimize distractions (Exhibit E‑12). She was not aware of the grievor’s need to have information presented in both visual and auditory formats. Nor was she informed that the grievor’s preparation could not be interrupted (Exhibit G-53).

[148]  Specifically, the grievor requested double the time to prepare in an individual room without interruptions and the ability to take breaks when needed. If she needed a break, she would inform the advisor, who would suspend the time. Additionally, the questions were in a larger font, and she was allowed paper and a pen. Ms. Langevin agreed that INAC and Environment Canada had agreed to those accommodations before the PQP.

[149]  On November 30, 2010, the grievor was placed in an individual room and was informed as to how the process would unfold. She was given double the preparation time and was allowed to take breaks whenever she needed them. Ms. Langevin, who supervised the process, informed the grievor that she would be nearby should the grievor need anything.

[150]  The grievor began to write her answers. She read the knowledge question and was surprised to see that in her words, it “was put in a way that was not typical of a knowledge PQP question”. She was concerned because she did not receive the clarification to the question that she had asked for. She went to search for Ms. Langevin. At first, she could not find Ms. Langevin. It took her a few minutes to find Ms. Langevin in the photocopier room.

[151]  The grievor informed Ms. Langevin that she was upset at the fact that Ms. Langevin had given her the opposite information for the knowledge-based question and that Ms. Langevin had not specified the department. The grievor asked her to specify it. She saw that Ms. Langevin knew it but that she refused to answer. Ms. Langevin told her to answer the question the way she wanted to. She told Ms. Langevin that she considered it an interruption. She tried to answer the questions to the best of her abilities. Ms. Langevin did not address the interruption by giving her extra time as initially agreed to. In cross-examination, she did not recall if Ms. Langevin refused to give her extra time to address the interruption.

[152]  Ms. Langevin disagreed with the grievor. She recalled informing the grievor and Mr. Morisho that the knowledge question would be focused on Environment Canada because the grievor was applying for a position there. Ms. Langevin recalled having had discussions earlier with the grievor about it and informing the grievor in writing that the knowledge question would be focused on Environment Canada. Ms. Langevin recalled the interruption involving the knowledge question. She told the grievor that the question was focused on Environment Canada. She did not recall any request from the grievor with respect to compensating her for the time lost inquiring about the knowledge question. The grievor did not ask for more time.

[153]  At the interview, the grievor informed the assessment board about the irregularity in the preparation time and the interruption. She had responded to approximately five or six of the questions as best she could. The knowledge question was unclear to her. Mr. Billingsley, Director General, Policy Development and Coordination, INAC, informed her to answer it as best she could, with supporting authorities. In cross-examination, the grievor indicated that she answered the question based on her experience at Environment Canada without specifically referring to the department.

[154]  The employer called George Enei. At the time of the PQP, he was a director general, science and risk assessment, at Environment Canada and was part of the assessment board, along with Mr. Perry Billingsley and Jane Dyer, Director General, Sustainability Directorate, Environment Canada. Before the PQP, he had never met the grievor. He recalled that it was an AANDC process and that the grievor was given double the preparation time. He was not aware of any disability on her part. He did not recall anything unusual about the interview. As long as candidates provided the basic principles in their answers, they passed the interview.

[155]  Mr. Enei recalled that the last one was a generic policy question. The grievor’s response was odd and did not reflect the reality of what was happening at Environment Canada. The “Leadership Development Programs Career Assignment Program (CAP) EX-01 Pre-qualification Interview Booklet for Board Members” and the “Interview Rating Booklet” were entered into evidence (Exhibits E‑30 and G‑37). The Rating Booklet indicated that the grievor passed all the questions at an EX-entry standard and at an above-EX-entry standard, except for the knowledge question.

[156]  The knowledge question stated, “What are the major issues currently facing our department?” The grievor was then asked to discuss one of those issues in a more in-depth manner and to identify the measures she would put in place in her department to address it.

[157]  In Mr. Enei’s view, her answer was so patently off base that he could not rate it. She was confused about the priorities and could not translate them. She discussed recruitment and retention in the scientific community, which was not an issue for Environment Canada at that time. He explained that the questions were purposely generic to allow the candidates to relate to any assignment or previous experience. The question was to determine a candidate’s ability to translate, analyze, and synthesize policies into the department’s actual priorities. He knew that if he could not rate her or if they gave her a low mark she would not succeed in the competition.

[158]  In cross-examination, Mr. Enei stated that he recognized that by the end of the interview, the grievor “ran out of gas”. As the interview progressed, her answers became not as deep and rich as her earlier answers. He did not recall if she requested any clarification of the knowledge question or if the recruitment and retention issue was raised as a common issue between INAC and Environment Canada. He had not been involved in developing the assessment tools.

[159]  A few days later, around December 3, 2010, Ms. Langevin informed the grievor that she had failed. She was shaken and upset. She was surprised because she had been carrying out the duties of the position for a year-and-a-half, with good performance. She told Ms. Langevin that she was disappointed but that she could always return to her substantive LA-2A position. She was tearful in her Environment Canada office. She asked Ms. Langevin to send her the PQP results (Exhibit G‑37).

[160]  The PQP results demonstrated that she succeeded on some of the questions and that on some, she exceeded expectations, except for the knowledge question, which the assessment board had been unable to rate her The grievor perceived that the assessment board’s lack of understanding of her accommodation needs resulted in her not passing the interview. She had been acting in the EX-01 position for over a year‑and-a-half, achieved the performance bonus, and passed all requirements. She felt that failing was extremely unjust. In cross-examination, she indicated that the lack of an SOMC, the lack of clarity in the knowledge question, and the interruption demonstrated a lack of accommodation.

[161]  A teleconference was held with Ms. Langevin and Corinne Boudreault, Director General, Human Resources, Environment Canada, to find options to rectify the situation. The grievor emailed Ms. Langevin and Mr. Billingsley, requesting that she be reassessed with the appropriate accommodation, that the question be eliminated, that it be addressed in a separate exam targeted to Environment Canada, or that a broad question be substituted covering the Government of Canada. She was under the impression that Mr. Billingsley was working to rectify the situation so that she could be appointed to the position. If the employer was not able to resolve the situation and appoint her to an EX-01 position, the alternative was that she would be reduced to an EC-07 position. It was a very stressful time for her.

[162]  The grievor took steps to schedule a meeting with Ms. Haskins and Ms. Langevin to return to an LA-2A position at the DOJ in case nothing could be done about the PQP. She requested the help of the Association of Justice Counsel (AJC), the bargaining agent for all lawyers at the DOJ. Unfortunately, there was no position at the DOJ. Ms. Haskins provided her with a list of departments that as of November 16, 2010, had LA positions (Exhibit G‑38).

[163]  Ms. Langevin stated that INAC could potentially offer her an EC-08 position. The grievor thought that unacceptable. Her experience was as an EX-01. And even if the EC‑08 position was just below an EX-01, it was substantially lower than her LA‑2A substantive position in the CAP. The grievor viewed the EC-07 and EC-08 positions as demotions because they were not consistent with the agreement that she sought and received before joining the CAP.

[164]  Had she known that that could have been the outcome, she never would have participated in the CAP., In her view, it was a significant reduction in classification, functions, and pay. Considering all the experience she had gained in the CAP, her positive performance evaluations, and the fact that she had achieved CBC second-language evaluation results in French, it was shocking to her because she left the program at a lower level than she had been at in the program. She had been encouraged to apply for the program; it had no risk.

[165]  On January 28, 2011, Ms. Langevin responded to the grievor’s request to be reassessed with the proper accommodation (Exhibit G-40). She indicated that unfortunately, a reassessment of the knowledge question from the PQP interview could not be granted, based on staffing values. She indicated that she had never heard of anyone failing an interview and then being reassessed. She stated that the knowledge question was to be targeted to Environment Canada because the grievor was in a position there. She was surprised at the grievor’s reaction because they had discussed it at length. Ms. Langevin indicated that the grievor had told her that although she had a cold and her father was ill, she wanted to get the interview over with.

[166]  In cross-examination, Ms. Langevin acknowledged that she was not aware if any steps were taken to address the grievor’s February 9, 2011, email to Mr. Billingsley about her request to be re-evaluated on the knowledge component of the PQP exam and containing her questions about her substantive position at the DOJ (Exhibit G-42). Ms. Langevin insisted that the grievor knew that the focus of the knowledge question was Environment Canada. She could not point to the email in which the grievor was informed that that was the case. She disagreed with the grievor’s statement that she was never provided with verbal direction that the knowledge question was Environment-Canada-specific and that INAC’s CAP PQP coordinator told her that it was a Government of Canada knowledge question designed to test the executive readiness of candidates for an EX pool (Exhibit G-41).

[167]  Ms. Langevin indicated that as part of the process, several other tools were used to assess the grievor’s competencies. The SELEX process, the CAP assignments, and the structured references were considered. She indicated that the grievor declined coaching from Richard Chénier, who was a professional coach with Environment Canada, for preparing for the PQP. She indicated that the PQP interview was not a formal requirement of the CAP as per the Guidelines of the Administration of Leadership Development Programs. The PQP is an opportunity for organizations to meet their human resources planning needs and to fulfil their succession plans to staff EX positions. A CAP graduate who was successful in a PQP might have been appointed to an EX-01 level position. There was no guarantee.

[168]  The grievor disagreed with the contents of Ms. Langevin’s response. In her view, much of the information Ms. Langevin conveyed to her was consistently and grossly inaccurate. Ms. Langevin acknowledged the fact that the grievor did in fact meet with Mr. Chénier (Exhibit G-26). Yet, she accused the grievor of refusing to meet with him (Exhibit G-40). That is why the grievor put all these inaccuracies in writing (Exhibit G‑41). At the time, she was panicked, and she decided to copy everyone involved in her CAP participation.

[169]  The grievor felt that it was unfair that Ms. Langevin responded to her accommodation request, not the assessment board. In her view, it was a conflict of interest for Ms. Langevin. Not only had she been responsible for administering the test, but also, she decided whether the grievor should be reassessed with the proper accommodation. On February 10, 2011, she indicated as much in an email to Mr. Billingsley. At that time, INAC requested her résumé and diplomas so that it could appoint her to an EC position.

[170]  She did not perform poorly in her assignment to the Environment Canada EX‑01 position, so she could not understand why INAC wanted to appoint her to a lower-level position (Exhibit G-43). She felt belittled at the fact that she was in an EX‑01 acting director position at Environment Canada, yet INAC, her CAP host department, asked for her résumé and copy of her diplomas to appoint her to a lower-level position.

[171]  The grievor felt that management should have responded to her request and that Mr. Billingsley did not exercise his powers. She disagreed that during the PQP, she told Ms. Langevin that she was ill but that she could handle it. She asked that the PSC be involved in the reassessment and accommodation process.

[172]  Based on her prior director’s assessment and the fact that her performance in that position had been above average, she had knowledge of Environment Canada. Had she known that the question would be focused on Environment Canada, she would have succeeded in the PQP. With the proper accommodation, she would have been appointed to an EX-01 position.

D. The offer letter for the EC-07 senior policy advisor position

[173]  The grievor graduated from the program on February 10, 2011, when she was offered the EC-07 senior policy advisor position in the Treaties and Aboriginal Government Branch. The only offer made to her was to reduce her from an LA-2A to an EC-07. This was extremely stressful for her, and she felt it was unjust.

[174]  The offer letter indicated as follows:

...

Further to Section 10.8(5) – salary protection of the Directive on the Administration of Leadership Development Programs, ... [the grievor’s] salary ... will be protected at the LA-2A group and level for a maximum of 24 months (March 1, 2011 until February 28, 2013) or until [she accepted] another position.

...

[175]  Mr. Billingsley signed it. The grievor indicated that she accepted it under protest.

[176]  According to Ms. Lamothe, it was not a demotion but an appointment pursuant to the PSEA. The rationale for ending the grievor’s participation in the CAP was the TBSC’s direction that the program was being phased out by December 2011. By November 2010, the grievor had met all the requirements to graduate from the CAP.

[177]  In cross-examination, Ms. Lamothestated that she applied the revised policy in place at the time the grievor graduated from the program and not the one in place when the grievor was first accepted into the program. Because the grievor was unsuccessful in the PQP and met all the requirements of the program, the Deputy Minister decided to terminate her participation in the CAP and to appoint her to an EC‑07 senior policy advisor position. Ms. Lamothe did not agree that the grievor was not accommodated during the PQP.

[178]  The grievor was shocked. Although she had not agreed to the EC‑08 position that Ms. Langevin had initially proposed, the appointment was at a level lower. She was still asking for responses to her accommodation requests, but this confirmed that a decision had already been made. The EC-07 position was in the same group that she had helped Mr. Bédard set up 11 years earlier, during her first assignment. She viewed it as a substantial regression. She felt stressed, and it was affecting her health.

[179]  On February 14, 2011, she wrote to Ms. Langevin, informing her that the offer letter was not consistent with what was discussed at the January meeting that human resources, labour relations, the DOJ, and the AJC attended. Human resources and labour relations determined that theywould offer her an EC-08 position with two years’ salary protection at the LA-2A level. Ms. Langevin indicated that it was a mistake and that it was conditional upon INAC having a position available.

[180]  Ms. Langevin further indicated that she could not be appointed to an EC-08 position because it would be equivalent to an EX-01 position, which she did not qualify for, per the PQP. The grievor disagreed that an EC-08 position was equivalent to an EX‑01 position; although it had a similar pay scale, the range of duties and functions were different. She viewed the offer as a demotion not based on merit and inconsistent with the CAP’s objectives and the terms and conditions she agreed to when she participated in the CAP. The functions of an EC-07 were significantly different and reduced from her LA-2A substantive position, including her acting assignment in the CAP. Her LA-2A salary 2A was $118 995 compared to the EC‑07 at $103 707.

[181]  On February 16, 2011, the grievor wrote to Mr. Cavanagh in his capacity as her former director in the CAP (Exhibit G-45). She knew that he was aware of her unique arrangement and of her participation in the CAP. The employer objected to the admissibility of this document, stating that it was highly prejudicial and that it did not demonstrate the truth of its content. Therefore, it should not be relied upon as such. I allowed the document into evidence and informed the parties that I would hear them in argument as to how much weight, if any, I should give the document (Exhibit G‑46).

[182]  According to the grievor, Mr. Cavanagh’s description of her participation in the CAP fully encompassed her personal understanding. It was that she retained her LA‑2A substantive position during her participation in the CAP so that she could benefit from development, as an Aboriginal person, and gain language training to the CBC level as well as financial and people management skills so that she would have the option to be able to return to the DOJ at the end.

[183]  In his email, Mr. Cavanagh explained that at the time, the PSC and INAC intended for the grievor to participate in the CAP, like other participants appointed to CA-01 and CA-02 positions, while retaining her indeterminate status throughout, via a SAPP, and then return to an LA position or take an executive position at the end. For that reason, it was set out in a special letter to her, outlining the protection of her LA‑2A indeterminate status, which was intended to be retained at the end of the CAP. As discussed, this document is evidence that the grievor understood that she retained her substantive position while in the CAP.

[184]  The grievor hired private counsel and made several proposals to resolve the issue. The last letter, dated March 4, 2011, and sent to DIAND’s legal counsel, remained unanswered. Ultimately, the grievor agreed to sign, under protest, the February 10, 2011 (Exhibit E-20), offer letter for the EC-07 senior policy advisor position. She requested an extension of her assignment in the CAP so that she could attempt to find other employment at her level, but DIAND refused. Ms. Langevin stated that the grievor’s assignment could not be extended because she had met all requirements of the CAP. Her only option was to accept the EC-07 position; otherwise, she would no longer have a position. INAC’s Notification of Consideration indicated that she had been appointed to this position from her previous LA-2A position (Exhibit G-50).

[185]  In cross-examination, Ms. Langevin agreed that the CAP was to be completed by December 2011 and that the PQP results were received in December 2010.

[186]  The Directive on the Administration of Leadership Development Programs - Management Trainee Program and Career Assignment Program lists specific circumstances in which participants graduate from the program. It also provides for transitional measures for participants who entered the CAP before 2006 and indicates that participants are entitled to four years in the program.

[187]  In redirect, Ms. Langevin explained that the CAP ended in 2009 but that TBSC granted two years to host departments, to December 2011, to bring candidates out of the program. I note that the grievor spent 45 months in the CAP (Exhibit E‑15). The terms and conditions of her last assignment provided that it could be extended, upon the mutual agreement of the parties. Without further explanation, Ms. Langevin disagreed and testified that there was not enough time left to extend that assignment.

[188]  The grievor was hoping that Mr. Billingsley, as her director at INAC, would take measures to address the issue with the PQP, to find a resolution. Options were available, such as retesting her on the last question or even simply considering her performance in the acting EX-01 position she had been in at Environment Canada and for which she had received a positive performance evaluation to determine whether she was in fact EX-01-ready or to return her to her LA-2A DOJ position.

[189]  Her last day was very upsetting because she had to address the fact that she was leaving, and she had to appoint someone from her team to take over. She began working in her new EC-07 position the next day. The grievor explained that it was a stressful time for her. She received no response to her PQP questions. It was personally and professionally humiliating for her to return to a lower position in the department, INAC, which she had started working in as a lawyer several years before. She took vacation and then went on a period of sick leave.

[190]  On her first day, she was greeted by her director, whom she had hired several years prior. The Director understood the difficult situation and gave her transition time. She remained professional and followed her directions. The EC-07 senior advisor position did not compare to her LA-2A duties and functions. She did not provide legal advice. She had no obligations with respect to confidentiality obligations, no budget, and no staff. She was by herself at an open desk, carrying out policy functions. She had salary protection for two years until March 2013, but INACdid not pay for her professional fees, and there was no performance pay option, which she had consistently received since she was initially hired as an LA-01.

E. The grievor’s arguments

[191]  The employer agreed that there was no cause for the demotion. Therefore, if I find that the grievor was demoted, it was contrary to the FAA. She was transferred from her LA-2A position to her current position as a result of the employer’s failure to accommodate her during the PQP.

[192]  The evidence plainly meets the definition of demotion. In support of her position, the grievor referred me to Peters, at para. 265, as follows:

[265] As confirmed by the adjudicator in Browne, cited above by the employer, a demotion within the meaning of the PSSRA and the FAA to which it refers occurs where both an employee’s classification and pay changes. An employee is demoted when she or he moves to, or is placed in, “... a position at a lower maximum rate of pay ....” A demotion, therefore, requires there to have been a prior appointment to a higher-level classification for which the higher-level pay is an entitlement.

[193]  In this case, the grievor occupied an LA‑2A position when she was appointed to her current EC-07 position. INAC’s Notification of Consideration indicated that she was appointed to the EC-07 position from her previous LA‑2A position (Exhibit G‑50). In this position, she made about $15 000 less per year than she did in her substantive LA‑2A position. She also lost performance pay, which represented approximately $5500 per year.

[194]  The jurisprudence from the private sector and the Board is consistent as to the definition of demotion, which includes a loss of salary, a loss of opportunity, a transfer to less-interesting work, and the risk of losing specialized skills. In support of her position, the grievor relied on Robitaille; Prince Foods Inc. v. U.F.C.W., Local 175 (2004), 131 L.A.C. (4^th) 418; and Good Humour-Breyers, Simcoe v. U.F.C.W. (2004), 126 L.A.C. (4^th) 423.

[195]  In her   LA-2A position, the grievor was responsible for legal files and worked closely with clients on shaping the files. She also mentored articling students. In the EC-07 position, she was not responsible for any staff, did not mentor anyone, and largely worked in solitude, performing policy research. Her lawyer skills were not used. When she was initially transferred to the EC-07 position in a team that she had participated in building as part of her first CAP assignment, she was not assigned any work. She felt devalued.

[196]  It is plain on its face that what happened was a demotion cloaked as a deployment. The employer’s main argument is that it was not a demotion because the grievor agreed to be deployed to an EX-minus-one or minus-two level position. She was already at a high level when she entered the program, and she took measures to ensure that her position would be protected. Had she known there was a risk that she would come out of the program at a lower level, she would not have participated.

[197]  The transfer from the LA-2A position was not a deployment. Mr. Hines clearly testified that a deployment is at-level. Participants who reached the CA-01 level were to be deployed to the EX-minus-two level, and those who reached the CA-02 level were to be deployed to the EX-minus-one level. This provision did not apply to her because she maintained her terms and conditions of employment as prescribed in the LA group collective agreement.

F. The employer’s arguments

[198]  The grievor had the onus of establishing that there was a demotion for cause. She did not make an estoppel argument. There is no indication of a for-cause demotion. It is not sufficient that she was deployed to a position at a lower pay scale. There was no poor performance and no discipline. The grievance should be dismissed on that basis alone. As stated, the employer maintained that the Board does not have jurisdiction because there is no evidence of the exercise of a delegation of authority under ss. 12(1)(d) or (e) of the FAA.

[199]  Mr. Hines explained that the CAP’s goal was to have candidates qualify for EX positions. There was no guarantee that they all would make it. The grievor graduated from the CAP because she met all the graduation conditions. The offer letter that she signed and accepted provided that she would be offered an EX‑minus‑one or minus‑two position upon graduation. That is why she was deployed out of the PL position to an EC-07 position. It was not a demotion for cause.

G. Conclusion

[200]  In the fall of 2010, neither the grievor nor Ms. Langevin knew that she could not return to her LA-2A position. It was unclear that she had relinquished it. Otherwise, Ms. Langevin would not have needed to make so many inquiries. The evidence clearly established that the grievor participated in the CAP as an LA-2A. I have already found that the evidence supports my finding that the grievor did not relinquish her right to an LA-2A position once the CAP program came to an end. In reaching this finding, I have placed little weight on the correspondence from Mr. Cavanagh (Exhibit G‑46). In the context of all of the evidence, it supports my finding that the grievor did not relinquish her LA2A position. DIAND’s Notification of Consideration clearly indicates as much (Exhibit G-50). As I have concluded, the grievor never stopped being a lawyer.

[201]  The goal of the program was to have candidates qualify at the EX level. As Mr. Hines indicated, it was an initiative intended to address the systemic underrepresentation of indigenous peoples at the executive level. The Directive on the Administration of Leadership Development Programs - Management Trainee Program and Career Assignment Program, which took effect on April 2, 2006, and replaced the CAP policy dated April 2000 (Exhibit E-14), contained three objectives, which can be summarized as developing, strengthening, and maintaining a highly skilled, competent, bilingual, and representative public service to help meet the current and future leadership needs and employment equity goals of the core public administration as identified in the participating organizations’ human resources plans.

[202]  Upon graduation, CAP participants were expected to land successful job placements that supported their career goals. The PSC assessed the grievor’s competencies and experience. It was determined that she met the executive competencies of a PL-06, the equivalent of the former CA-02. There was no evidence that she was appointed to a PL-06 position. The intent of the host department was to appoint her to the EX-01 director of aboriginal and stakeholder relations position at Environment Canada, in which she had acted for almost a year-and-a-half. According to her performance evaluation in that position, she met all the leadership competencies, and she was ready to assume the position. This was consistent with the TBSC’s recommendation that the last assignment for participants be a placement at the onset of that assignment. Unfortunately, the only offer made to her was as an EC-07.

[203]  The grievor introduced the “Career Assignment Program (CAP) Natural Resources Canada Participant Guide” (Exhibit G-30). Although its relevance is limited, it does demonstrate inconsistency in how participants in the CAP at Natural Resources Canada (NRC) were treated. At page 6, it provides that candidates not pre-qualified at the EX-01 level at the end of the program will be transferred to a position at a level equivalent to the ones they occupied in their home departments. That is not in line with Ms. Langevin’s interpretation of the CAP policy. She testified that it provided that if the grievor was unsuccessful at the PQP, then she would be offered an EX-minus‑one or minus‑two position.

[204]  The employer’s evidence on this point was contradictory. Mr. Hines testified that participants were to be deployed to the level they achieved during their CAP participation. Candidates who achieved the CA‑01 (PL‑05) level in the CAP would be deployed to an EX-minus-two level position, and those who achieved the CA‑02 (PL‑06) level would be deployed to an EX-minus-one level position. Mr. Hines’ testimony is consistent with the NRC’s guide. Mr. Cameron assessed the grievor as a PL-06. Yet, she was offered an EC‑07 position, the equivalent of an EX‑minus‑two position. According to Ms. Langevin, the grievor could not have been appointed to an EC-08 position because she had been unsuccessful in the EX-01 PQP.

[205]  I agree with the grievor. There was no legal basis to deploy her to a lower-level position. She was assessed at the PL-06 level in the CAP, which was a level higher than the EC-07 position offered to her. Mr. Hines explained that the purpose of the wording “depending on the level achieved” in the offer letter was to ensure that CAP participants were deployed at a level equivalent to what they had achieved in the program. He specifically testified that a transfer must be “at-level” to be a deployment. Therefore, the grievor was not deployed in accordance with the terms and conditions of the CAP.

[206]  The grievor testified that at the time of her transfer to the EC-07 position, she was receiving $118 995, the maximum rate of pay at the LA-2A group and level. Once she was appointed to the EC-07 position, effective March 1, 2011, her yearly salary became $103 707. This represented $15 288 less annually than the LA-2A rate of pay. She also lost the option of performance pay, for which she had been eligible as an LA‑2A.

[207]  The grievor explained that the transfer to the EC-07 position represented a reduction in responsibilities and career opportunities that devalued and diminished her work experience. She was given no job functions initially and was put in a team that she had helped the director general manage as part of her first CAP assignment. She had no financial responsibilities, no budget, no confidentiality requirements, and no obligation to remain in good standing with the law society or to use her legal, leadership, and management skills, which she had successfully demonstrated while in the CAP. She did not have a leadership role, and she had no staff to supervise or mentor. She worked largely by herself without client contact, conducting policy research.

[208]  Her situation fits squarely within the meaning of a demotion as described in the Act and the case law. There was a significant loss of salary, diminished responsibilities, and no use of the skills and experience she successfully achieved in the CAP.

[209]  Section 209(1)(c)(i) of the Act provides that an employee may refer to adjudication a grievance related to a demotion under s. 12(1)(e) of the FAA for any other reason that does not relate to a breach of discipline or misconduct. Section 12(3) of the FAA provides that a demotion may only be for cause.

[210]  The employer agreed that there was no discipline or misconduct and that there was no poor performance. It relied on that as its main argument against the Board’s jurisdiction. As stated by the employer’s witness, Ms. Langevin, the grievor was appointed to an EC-07 and not an EC-08 position because she failed to qualify for the PQP. Her evidence was consistent with that of Ms. Lamothe, who testified that the major rationale as to why the grievor was transferred to the EC-07 position was that she had spent 36 months in the CAP, it was not feasible for her to embark on another assignment, and she did not pass the PQP.

[211]  The evidence established that the demotion was triggered by her graduation from the CAP and her failure to pass the PQP, which is a reason that does not relate to a breach of discipline or misconduct. Therefore, I find that the Board has jurisdiction and that the grievor was demoted within the meaning of ss. 209(1)(c)(i) of the Act and 12(1)(e) of the FAA. I must now determine whether her failure of the PQP and her subsequent demotion were for a legitimate reason.

VI. Was the demotion for a legitimate reason?

A. Was the grievor discriminated against?

[212]  The grievor maintained that her demotion to the EC-07 group and level was discriminatory as it was the direct result of the failure to accommodate her disabilities during the PQP in the fall of 2010.

[213]  An adjudicator possesses the powers set out in ss. 226(2)(a) and (b) of the Act, which read in part as follows [the section numbers have changed since the previous version of the Act, but the wording has not]:

226 (2) An adjudicator may, in relation to any matter referred to adjudication,

...

(a) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;

(b) give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act ....

[214]  Section 7 of the CHRA provides that it is a discriminatory practice to refuse to employ or to continue to employ an individual if it is based on a prohibited ground of discrimination. Section 3 of the CHRA provides that disability is among the prohibited grounds of discrimination.

[215]  To demonstrate that an employer committed a discriminatory act, a grievor must submit sufficient prima facie evidence of discrimination, namely, evidence that “... 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”; see Ontario Human Rights Commission v. Simpsons‑Sears, [1985] 2 S.C.R. 536.

[216]  To establish a prima facie case of discrimination, the grievor had to demonstrate that she possesses a characteristic protected against discrimination by the CHRA, that she suffered employment-related adverse impacts, and that the protected characteristic was a factor in the adverse impact; see Moore v. British Columbia (Education), 2012 SCC 61.

[217]  Discriminatory considerations do not necessarily have to be the only reasons for which the demotion was made for a discrimination allegation to be justified. The discrimination need only be a factor in the employer’s decision; see Holden v. Canadian National Railway Co. (1990), 112 N.R. 395 (C.A.). The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities (see Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 F.C. 789 (C.A.) at para. 33; and Canada (Attorney General) v. Montreuil, 2009 FC 60 at para. 22).

[218]  The employer must reply to a prima facie case of discrimination to avoid an adverse finding by submitting evidence that demonstrates either that the alleged discrimination did not take place or that its actions were not discriminatory. Furthermore, the employer can rely on a statutory defence that justifies its discriminatory act; see A.B. v. Eazy Express Inc., 2014 CHRT 35. In this case, the relevant provision is s. 15 of the CHRA, which reads in part as follows:

15 (1) It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement ....

[219]  In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 at para. 54, the Supreme Court of Canada indicated how to determine whether a standard imposed by an employer was indeed a bona fide occupational requirement. The employer must demonstrate the following, on a balance of probabilities:

...

(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;

(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and

(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

[220]  In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, the Supreme Court of Canada indicated that the employer must demonstrate that it provided accommodation up to the point of undue hardship.

[221]  Within that framework, I must examine whether the demotion was discriminatory.

B. Language training and the grievor’s learning disability and related anxiety

[222]  In or about 2002, the grievor began language training in Asticou. In April of 2003, she went on maternity leave. Everyone in the group was at a different level. She was confused as to why she was not able to progress as quickly as others, given her eagerness to learn. She informed Ms. Proulx, the CAP liaison officer, of her concern. Ms. Proulx told her to give it time and to be patient with herself. The grievor called her several times a week.

[223]  The grievor became frustrated at the lack of response and decided to contact Mr. Cameron. He reported directly to Mr. Hines. He told her that she was expecting too much too quickly and that she should give it time. She refused. She was certain that something was wrong with her and that she needed to be assessed. The PSC refused to assess her, so she saw her family doctor.

[224]  She returned to her INAC office and spoke with her director, Gail Mitchell. The grievor informed her that she could no longer continue. She requested to be assessed. Ms. Mitchell spoke with the CSPS. It was decided that Dr. Moncion would assess the grievor. INAC paid for the assessment. Then, the grievor again went on maternity leave for a year. As a result of Dr. Moncion’s psycho-educational assessment report, the grievor learned that she had a learning disability.

[225]  On August 26, 2005, the grievor sent Mr. Cameron a detailed letter about her assessment and an accommodation request for one-on-one training. INAC requested clarification from Dr. Moncion, who reiterated the need for the grievor to receive that training, to maximize her chance of success. Both the PSC and INAC were aware of the grievor’s accommodation needs. Both had received the report, yet they continuously requested clarification and justification for the requested accommodation. This caused the grievor stress and anxiety, which led to her going on sick leave. Eventually, the employer granted the required accommodation, and she successfully completed her language training with the Academie Linguistique and began searching for a second assignment.

[226]  In 2006, she heard that the CAP was being decentralized and that changes would occur. However, she was assured that she would be grandfathered. In cross‑examination, she acknowledged that she understood that the CAP would end in 2011.

[227]  Ms. Proulx recalled that the grievor began language training in November 2005 and that she experienced some challenges. She did not progress as quickly as she should have. Therefore, Ms. Proulx suggested that the grievor be assessed by the Centre Canadien de gestion et professionel de langues secondes (“the school”). DIAND agreed to pay for an assessment, to see if she had learning difficulties. In November 2005, Ms. Proulx left the CAP and was no longer involved with the grievor.

[228]  In cross-examination, Ms. Proulx agreed that the grievor had expressed difficulties in 2002 and 2005 with respect to language training. The psycho-educational assessment report dated July 17, 2005, and prepared by Goldstein, Moncion, Greenbaum and Associates, mandated by DIAND, was sent to Ms. Proulx on September 9, 2005. The report indicated that the grievor suffered from a learning disability with respect to learning new languages. As an accommodation, Ms. Proulx recalled that the grievor received personalized language training as recommended by Dr. Moncion (Exhibit G-13) to address the issues raised in the report. Ms. Proulx left the CAP in February 2005.

[229]  Several months after failing the PQP, on September 30, 2011, the grievor saw Dr. Moncion, who was her treating clinical psychologist, for career rehabilitation advice. She wanted to apply to a selection process and wanted her specific needs in writing, to accommodate her learning disability. She applied to EX-level selection processes, but many of them did not proceed, because of the Deficit Reduction Action Plan (DRAP). She was screened-in to some of them, but not all.

[230]  In her letter, Dr. Moncion discusses the November 30, 2010, EX-01 PQP. She notes that the grievor’s accommodation time for the preparation was interrupted for approximately 10 minutes. She had to leave the preparation room to seek clarification from the human resources officer administering the exam. The lost time was not given back to her.

[231]  Dr. Moncion noted that the interruption would have interfered with the grievor’s preparation, concentration, and focus and that it increased her anxiety, which could have undermined her performance. She also indicated that an unclear question with respect to the frame of reference would have increased the grievor’s anxiety. She indicated that receiving different directions before and then during the exam would have further increased the grievor’s anxiety, thus undermining her performance.

[232]  On May 16, 2013, Dr. Moncion wrote to DIAND at the grievor’s request to reiterate her accommodation needs in future selection processes. She indicated that the grievor had a highly inconsistent learning profile with significantly stronger language-mediated reasoning skills as opposed to non-verbal visual-spatial reasoning skills, which affects her in several ways. She recommends for the grievor the multisensory presentation of information, the opportunity to preview the information that is used to formulate her responses, the doubling of preparation and presentation time for tests, the ability to take rest breaks, and the reduction of distractions in her test environment (Exhibit G-54).

[233]  Ms. Langevin did not recall seeing Dr. Moncion’s letter because she was no longer in her position at that time. She disagreed with the grievor’s claim that the interruption in the PQP lasted 10 minutes and that she was refused the make-up time. She recalled the grievor receiving extra time during the interview to add additional information to her answers. She did not recall seeing the grievor’s performance evaluation covering April 1, 2009, to March 31, 2010 (Exhibit G‑53).

[234]  In cross-examination, Ms. Langevin disagreed that she left the examination room and that the grievor found her in the photocopy room. She indicated that “no way [she] would have ever left the room”. She did not recall the grievor asking her to address the interruption and to give her more time. Nor did she recall denying the grievor more time to address the interruption because the interview was starting.

C. The medical evidence

[235]  The grievor called Drs. Dollin and Moncion. Dr. Janet Dollin has been the grievor’s family physician since 1996. She diagnosed and treated the grievor on a continuous basis for both a major depressive disorder and general anxiety disorder. Those diagnoses were made before Dr. Dollin began treating the grievor and were confirmed several times, including by a clinical psychologist and psychiatrist in 2005. She has referred the grievor to other specialists as needed, including in 2012 for a sleep disorder consultation (Exhibits G-59, G-60, and G-61).

[236]  Dr. Dollin explained that the grievor’s anxiety and depression manifest through a lack of calmness. She becomes panicked and anxious, and she loses sleep. In rating the grievor’s “Global Assessment of Functioning” (GAF), Dr. Dollin stated that she could range between a rating of 45 and 80. She noted that 80 generally indicates that someone is doing great, while 45 indicates that he or she is not coping.

[237]  The grievor’s symptoms would manifest as trouble concentrating and focusing. The anxiety and depression affected her ability to remember and think clearly. The loss of sleep would result in fatigue, which would escalate her anxiety symptoms. She was affected by depressed moods and black thoughts, which impacted her self-esteem. They were often accompanied by feelings of anxiety.

[238]  In cross-examination, Dr. Dollin testified that the grievor’s medication was helpful and that in 2009, 2010, and 2012, she was doing very well. In redirect, she indicated that the reason there is no record of seeing the grievor during that time is that she did not see the grievor then.

[239]  Dr. Dollin explained the fact that the grievor completed law school did not indicate that she did not have a disability or related anxiety issues. At a global assessment of 70, the grievor would function well. But at 50, she would be less resilient and more easily tipped into anxiety. The grievor had a history of trauma. If she felt victimized, it would bring her down more easily (Exhibit G‑61, pages 95 to 124).

[240]  According to Dr. Dollin, the grievor’s failure on the last question is explained by the symptoms she experienced in the testing environment that brought her to an anxiety crisis. Because she did not get the help she needed, she panicked and could not focus for the remainder of the exam. Her medical condition fits in with her generalized anxiety and learning disability. Dr. Dollin explained that she did not diagnose the grievor with the learning disability. Dr. Moncion is part of a competent group of psychologists particularly sensitive to persons with a history of trauma. The grievor’s generalized anxiety impeded her capability to think.

[241]  When she discussed the PQP with the grievor, Dr. Dollin concluded that an interruption in the preparation time, much like an unexpected outcome, a critique or a failure, or a stressful situation, would impact the grievor to the point of being less functional. Because of her vulnerability when she is in that depressive state of mind, a change of time or unexpected event would make it more difficult for her to concentrate. In cross-examination, Dr. Dollin agreed that that was a description of what the grievor reported to her of how she felt during the PQP. As her treating physician, she can present only on what she observes. She explained that once the grievor was anxious, she could not focus anymore. She stated that she did not know if someone would be able to score excellently on the first four questions and then fail the final question because of anxiety.

[242]  In February of 2011, the grievor explained to Dr. Dollin what had happened at the PQP. She was depressed, and she was fearful of falling further into depression. She took time off. She was moderately depressed, and it was very difficult to assess her. Dr. Dollin decided to refer her again to Dr. Moncion. The grievor felt helpless and undervalued. She was experiencing a sleep disorder caused by mental health and insomnia as a result of her anxiety with respect to what had happened in the workplace.

[243]  The grievor has always complied with treatment. She seeks help before things worsen. She always tries and works to maintain her mental health. In cross‑examination, Dr. Dollin explained that if the grievor forgets to take her medication because she is feeling well, then she falls back into her mood, and her symptoms resurface. Persons with chronic illness such as the grievor could be symptomatic and suffer without knowing it.

[244]  The grievor called Dr. Moncion. The PSC retained her in 2005 to conduct a psycho-educational assessment of the difficulties the grievor was experiencing during French-language training. In her practice, she typically makes such assessments. She was on the PSC’s list of physicians. She was part of the Learning Disability Association of Ottawa Carleton, and she taught at the University of Ottawa and at Algonquin College.

[245]  Dr. Moncion met with the grievor three times, once for a clinical interview and the other two times to administer ability and achievement tests As described earlier, she produced a report on July 17, 2005, which identified the grievor as having a learning disorder. When Dr. Moncion assessed her, she was on medication for depression and underlying anxiety, which were all managed by her family physician.

[246]  The report mentioned a clear requirement that the grievor be given an opportunity to become familiar with the material before being assessed. It set out specific requirements that the information should be presented in a multisensory format and that she have both visual and auditory versions of it. Dr. Moncion noted that the grievor could focus for 20-minute segments and that she required more processing time to make sure that she took in the information appropriately, processed it, and took time to respond. She needed more time to process and think to be able to respond. Dr. Moncion’s reference to related anxiety was about the fact that the grievor was treated at the time for heightened anxiety, for which she was taking medication. Her focus was on the grievor’s French-language training and her learning abilities.

[247]  At the time in question, Dr. Moncion noted a discrepancy between the grievor’s mediated language and visual-spatial skills. This would cause issues, as the discrepant abilities meant that she processed different kinds of information at different rates and in different ways. Dr. Moncion observed a relative weakness in the areas of pseudoword decoding and listening comprehension (Exhibits G-64 and 65).

[248]  As a result of her assessment, Dr. Moncion recommended specific accommodations to address the grievor’s impairments. They included the multisensory presentation of information, a quiet place to work and to write exams to minimize distractions, and extended time for practice and acquiring French-language skills.

[249]  In 2007, Dr. Moncion confirmed the grievor’s learning disabilities as well as the anxiety issues identified by Dr. Dollin. According to her, they meant that the grievor would require a break midway through any testing. Dr. Moncion explained the need for more processing time as follows: “She would have to make sure that she was taking in that information correctly, have time to think about it, and formulate her responses orally” (Exhibit G-32). Any distractions would take away from her processing. Dr. Moncion’s recommendations were not unusual for someone with the grievor’s learning profile and were in-line with the accommodations the PSC was able to provide at the time. The doctor did not see the grievor for therapy but only to assess her.

[250]  Dr. Moncion testified that she was familiar with the grievor’s depression and anxiety, which Dr. Dollin had diagnosed and treated. She explained that the impact of the anxiety on the grievor’s learning profile was discussed during the clinical interview and in subsequent follow-up appointments. For instance, in relation to their meeting in 2007 to discuss accommodations for oral exams, Dr. Moncion testified that the core issues remained the combination of the documented learning issues and the related anxiety, which had flared up at the time.

[251]  She met with the grievor in March of 2007 at the PSC’s request. It required an update on her initial 2005 assessment. Dr. Moncion continued to uphold her recommendations based on the testing that she had already done, as was evidenced in her letter dated September 30, 2011. Based on what she observed from the grievor and how her anxiety interacted with her learning disability, any added stress would increase her anxiety, disrupt her processing, and increase her fatigue.

[252]  Dr. Moncion maintained that if the grievor’s anxiety rose too high, it would interfere with her ability to perform. The lost time, the interruption, and the lack of clarity would have contributed to increasing her anxiety. She could perform well if she had an opportunity to overlearn. She needs more time to process and organize her thoughts when faced with unfamiliar things. Otherwise, her performance is negatively impacted.

[253]  Dr. Moncion was familiar with Dr. Allyson G. Harrison’s report. The employer called her as a witness. She is a psychologist based in Kingston, Ontario. She completed her PhD in clinical psychology from Queen’s University in 1992. Her area of expertise is learning disabilities and related matters. She has written extensively on investigative methods to detect learning disabilities, particularly with respect to clinics that do not follow the appropriate guidelines.

[254]  In her report, Dr. Harrison raised a number of things that Dr. Moncion could have looked at in 2005 and the standards, which were quite different in 2005. Back then, her assessment focused on the applicable standards at the time and the PSC’s requirements. Dr. Harrison referenced practices that were in place in 2011 and 2012 and not in 2005.

[255]  Dr. Moncion disagreed with Dr. Harrison’s statement that Dr. Moncion had a dual relationship with the grievor. She was not the grievor’s treating physician but rather a treating specialist who was to assess and identify any learning issues.

[256]  In her paper assessment of the grievor, Dr. Harrison referred to relative weaknesses but not to a learning disability, indicating that Dr. Moncion had failed to reference the Diagnostic and Statistical Manual of Mental Disorders - IV and 5 (“DSM IV and 5”). Dr. Harrison explained that in 2005, no code books were available and that the DSM IV and 5, which had changed over the years, were not applicable then.

[257]  Dr. Moncion agreed that relative weaknesses did not amount to a learning disability but did change the grievor’s learning profile. She agreed that pseudoword decoding and listening comprehension did not amount to a disability, but they were a factor.

[258]  Psychology as a domain is always shifting and changing; it is fluid. The tools and measures and accepted practices in the learning disabilities area are more structured now than they were in 2005. At the time of Dr. Moncion’s 2005 diagnosis, the grievor met the criteria of having a learning disability. Dr. Moncion recognized that it had been 12 years since she was assessed and with the changes in the learning disabilities area, it probably would be a good idea to reassess her. The specifics of her learning profile would remain the same, as she continues to present with the same issues.

[259]  In terms of Dr. Harrison’s position that Dr. Moncion was biased and advocating for the grievor, Dr. Moncion agreed that she was advocating for the grievor but not in terms of a treating relationship. Her goal was to ensure that the grievor was participating as equally as others did. The PSC did not question her findings or her recommendation at the time. The standard to be applied today is significantly different from the one that existed from 2005 to 2010.

[260]  In cross-examination, Dr. Moncion stated that she did not assess the grievor’s GAF at that time. She accepted Dr. Dollin’s anxiety diagnosis.

[261]  Dr. Harrison concluded that based on the grievor’s position description, her performance evaluations, and Dr. Moncion’s medical reports, Dr. Moncion did not make an appropriate assessment. The only low marks the grievor achieved were in math, not languages. Dr. Harrison did not agree sufficient information was at hand to conclude that the grievor suffered from a learning disability that would prevent her from achieving equal participation.

[262]  When establishing a learning disability, the assessment begins with an agreed-to standard. The standard published by the American learning standard association states that an academic impairment is lifelong. A learning disability would impact an individual’s entire life; there would be evidence of an academic deficit and possibly underlying issues.

[263]  The applicable criteria to determine the existence of a learning disability was in place in 2005. Among the criteria are that the disability must be lifelong, the individual must be born with it and not only self-report, and there must be impairment in academic achievement below the 16^th percentile. Essentially, there would be evidence that the person was prevented from participating equally in most aspects of life.

[264]  That is not the case for the grievor. Her ability is better than 70% of the population. Apart from her mathematics deficiencies, she did not demonstrate that those other things carried on elsewhere in her life. There was no diagnosis of relative weaknesses. Dr. Moncion did not evaluate her language skills and phonetic coding abilities. She did not perform a memory test. On a review of Dr. Dollin’s records and Dr. Moncion’s assessment, nothing supports that the grievor suffers from a language-based disability.

[265]  In her initial assessment, Dr. Moncion did not explore potential situational issues. No follow-up was done on anything situational, such as difficulties at home, marital stress, obsessive-compulsive disorders, or sleep issues. Depression and situational stresses can affect testing without necessarily being a learning disability. Dr. Moncion did not assess the grievor’s cognitive state or the impact on the learning disability assessment. No formal assessment was made of the grievor’s anxiety. The only learning disability that could have been documented would have been the one in math.

[266]  There was no evidence of the grievor’s ability to process that would back up multisensory needs. There was no evidence that she needed double the processing time for test taking. Her speed-reading skills were normal, and her processing was fine. People who typically need extra time everywhere else in their lives are generally provided double the time for a test. The grievor went to law school with no history of requesting an accommodation. There was no objective evidence that she required that level of accommodation.

[267]  In cross-examination, Dr. Harrison agreed that her assessment was based only on a review of the paper record. She never met or assessed the grievor. She never discussed the grievor’s case with Drs. Dollin and Moncion. She agreed that the grievor’s diagnosis of depression and anxiety could require accommodation. She agreed that once the assessing physician identifies the functional limitations, it is up to the employer and the employee to determine what accommodations are required and available. She did not know that the grievor was part of a special program in law school for those from First Nations and was not aware of the grievor’s mark on the Law School Admissions Test (LSAT). She also agreed that in some cases, people may require accommodations even though they do not meet the formal diagnosis and criteria of a learning disability. She also agreed that there is confusion and no consensus in the medical field with respect to proper accommodations for learning disabilities.

D. The grievor’s arguments

[268]  The grievor provided clear medical evidence to substantiate that she has a medical condition that required accommodation and that her disabilities were not accommodated during the PQP. She clearly expressed a need to be accommodated before the date of the process. Specifically, she and the employer agreed that she should be given double the preparation time in a quiet, individual room, she should be given breaks during the preparation and the interview, and the questions would be in a large font. The parties determined those accommodations; they were not the recommendation of any doctor.

[269]  The grievor argued that Dr. Harrison’s evidence that refuted the existence of a disability need not be addressed. Dr. Harrison did not dispute the existence of the grievor’s depression and anxiety disorders. In cross-examination, she acknowledged that those disorders could impact the grievor’s functioning in the workplace and require accommodation. Given the medical evidence about the impact of the failure to accommodate the grievor during the PQP on those conditions alone, it is sufficient to conclude that the PQP was conducted in a discriminatory manner (Exhibit G-62, pages 2 and 15).

[270]  In the alternative, should it be necessary to deal with Dr. Harrison’s evidence, the grievor submitted that the evidence of Drs. Dollin and Moncion should be preferred. They had first-hand knowledge of the grievor’s history and functional limitations, while Dr. Harrison never met or assessed the grievor and relied on multiple inaccurate assumptions. Dr. Harrison also provided inconsistent testimony about the standards applicable to diagnosing a learning disability in 2005 and 2010, stating at first that they were well established and then acknowledging in cross-examination on her prior statement that there was “no consensus” as late as 2012.

[271]  Dr. Harrison’s analysis reflected an inaccurate understanding of the status of Canadian law. She imported standards from American disability laws and made significant accusations about bias and ethical errors when treating physicians testify on behalf of their patients, which are simply out of step with the approach to such experts before courts and arbitrators (Exhibit G-67, pages 5, and 19, Exhibit G-62, pages 9 and 10, and Exhibits G-68, G-69, and G-70). In support of this position, the grievor relied on Westerhof v. Gee Estate, 2015 ONCA 206 at paras. 76, 78, 79, and 86 (leave to appeal refused in [2015] S.C.C.A. No. 198 (QL)); and Canada Post Corp. v. C.U.P.W., (1992) C.L.A.D. No. 47 (QL) at paras. 35 to 40.

[272]  The evidence established that the employer’s failure to accommodate the grievor resulted in her demotion, which was discriminatory and not for cause, as required by the FAA.

E. The employer’s arguments

[273]  The employer argued that there was no failure to accommodate the grievor in the PQP. She simply failed the knowledge question. While it was (and remains) open to her to apply to other processes under the PSEA, it was not open to the selection board to pass her when she received the mark that the board was unable to assess her answer to the knowledge question.

[274]  The grievor had the burden of establishing a prima facie case of discrimination, including the existence of a disability. She had to demonstrate that she had a disability, that she received adverse treatment, and that her disability was a factor in the adverse treatment. Any suggestion that the employer’s attempt to accommodate her alleged disability is proof of its existence is without foundation. In support of its position, the employer relied on Flatt v. Treasury Board (Department of Industry), 2014 PSLREB 2 at para. 99.

[275]  A finding of prima facie discrimination should not be trivialized by artificially lowering the legal requirement for making that finding. The grievor failed to establish any of the three factors necessary to establish a prima facie case of discrimination based on depression or an anxiety disorder and a learning disability. It is respectfully submitted that she failed to establish that she had a learning disability other than, arguably, as it relates to mathematics, which is not at issue in this case.

[276]  The grievor failed to establish that she was suffering from depression or an anxiety disorder as of the November 30, 2010, interview. In fact, Dr. Dollin testified that the grievor’s depression and anxiety “cycled in and out” (Exhibit G-20). At times, she could have a GAF as low as 45, and at other times, it was as high as 80. She is proactive and seeks help before things get worse. Her medications worked well in treating her depression and anxiety. Dr. Dollin added that in 2009 and 2010, the grievor was doing “very well”. As Dr. Harrison noted, depression and anxiety disorders are the “most treatable”.

[277]  All the medical evidence demonstrated that the grievor was doing well in the fall of 2010. In Dr. Dollin’s medical notes (Exhibit G-60, tab 4, page 186), it was noted that the grievor had forgotten to take her medication in December 2010 and that she “began” to feel her usual mood and focus problems, anxiety, and response to stresses at work. There is no evidence that she suffered from depression or anxiety when she participated in the PQP on November 30, 2010. In fact, Dr. Dollin’s notes suggest the opposite.

[278]  There are two competing expert reports. Dr. Harrison’s should be preferred as she is truly independent since she had no relationship with the grievor, and her depth of expertise in the learning disabilities area far exceeds that of Dr. Moncion (Exhibit E‑38).

[279]  It is clear that the grievor has not established that she has a learning disability (combined reading of Exhibits G-62 and G-66). Dr. Harrison’s analysis was based on universally recognized diagnostic principles and a comprehensive understanding of the subject matter. According to her, Dr. Moncion’s 2005 assessment did not support the conclusions that she made. The grievor’s only identified impairment is with respect to mathematics, not language. Dr. Harrison disposed of any suggestion of a relative disability in the grievor’s case since her marks were within the expected range, given her IQ.

[280]  Dr. Harrison correctly pointed out the retrospective bias in Dr. Moncion’s advocacy letters of 2007 and 2011. Given her comprehensive subject-matter expertise, Dr. Harrison lists in her reports the numerous and significant shortfalls in Dr. Moncion’s analysis and conclusions. For example, she notes that for “decoding”, the grievor was better than 66% of the population. Therefore, calling it a disability was illogical and inaccurate. Even in cases of an actual learning disability, receiving double the preparation and exam times provides an unfair advantage (Exhibit E-42). She stated that having double the time is “extremely rare” and that it is reserved for people with a “profound impairment”.

[281]  In cross-examination, an article co-authored by Dr. Harrison was put to her. It was also suggested that many articles she had written dealt with detecting and dealing with false reporting. However, it is important to point out that they were accepted for publication in scientific journals. That establishes only that she is a subject-matter expert when it comes to learning disabilities.

[282]  In the alternative, to the extent that the grievor communicated her limitations to the employer in the staffing process, they were respected and accommodated. She could not identify clearly what was not accommodated in the selection process. Ultimately, the only alleged lack of accommodation that she was able to identify when she was challenged on this was that she was asked an “unclear question”. There was no mention of being denied the requested 15-minute breaks or multisensory presentations.

[283]  The grievor’s testimony and documentary evidence show how she was kept informed of every development and how she received significant training to prepare for the PQP. It was incumbent on her to request the appropriate accommodation. Ms. Langevin testified that an accommodation request was communicated to her team but that it dealt only with double the time for preparation and the interview, which ultimately, the grievor received. No other requests were made on the day of the interview.

[284]  For all of those reasons, the grievance against the staffing process and the requested corrective action should be dismissed.

F. Conclusion

[285]  For the reasons that follow, I find that the grievor successfully established a prima facie case of discrimination: she suffered from a disability protected under the CHRA, she suffered an employment-related adverse impact by being demoted, and her disability was a factor in that adverse impact since it affected her performance in the PQP process. She requested accommodation, and the employer agreed to provide all accommodations. However, it failed to reasonably accommodate her during the PQP. I am satisfied on the evidence before me that the lack of clarity on the knowledge question and the interruption exacerbated her medical condition, and contributed to her failing the PQP. Moreover, the employer provided no reasonable explanation as to why it could not reassess her with the proper accommodations. The employer failed to prove that it accommodated the grievor in the PQP process to the point of undue hardship.

[286]  Learning disabilities, depression, and anxiety disorders have all been repeatedly recognized as disabilities within the meaning of disability in human rights legislation. The grievor’s voluminous medical file establishes that she suffered from a medically recognized disability that required accommodation.

[287]  The psycho-educational assessment report dated July 17, 2005, and prepared by Goldstein, Moncion, Greenbaum and Associates indicates that the grievor suffered from a learning disability and related anxiety with respect to learning new languages. The follow-up letter, dated March 5, 2007, from Dr. Moncion refers to the grievor’s documented learning disability and related anxiety (Exhibit G-32). Although it appears that the employer requested clarification, it did not challenge Dr. Moncion’s findings; nor did it request an independent medical assessment at the time.

[288]  To the contrary, the grievor was provided with all required accommodations for her French oral exam, including the exam being not longer than 40 minutes, all questions being presented in visual and auditory formats with time for her to pause and prepare before responding, and a break midway through the interview. I also note that the PSC and INAC selected Dr. Moncion and mandated the assessment.

[289]  Only at the hearing did the employer challenge the diagnosis that the grievor has a learning disability. I do not believe that Dr. Moncion was biased towards the grievor or that she advocated for her in any inappropriate manner. However, I acknowledge that she did recognize that perhaps it would be time to have the grievor reassessed as to her learning disability diagnosis.

[290]  I agree with the grievor that Dr. Harrison’s evidence that refuted the existence of a learning disability is not determinative of the matter before me. Dr. Harrison did not dispute the existence of the grievor’s depression and anxiety disorders. In cross-examination, she acknowledged that those disorders could impact the grievor’s functioning in the workplace and require accommodation. Given the medical evidence about the impact of the failure to accommodate the grievor during the PQP on those conditions alone, it is sufficient to conclude that the PQP was conducted in a discriminatory manner (Exhibit G-62, pages 2 and 15)

[291]  Regardless of the debate about the grievor’s learning disability, the medical evidence is unequivocal. She suffered from a major depressive disorder and a general anxiety disorder that cycled in and out. At times, Dr. Dollin stated that the grievor could have a GAF as low as 45, and at other times, as high as 80. Dr. Dollin also stated that persons with a chronic illness, such as the grievor, could be symptomatic without knowing it. Both Drs. Moncion and Harrington did not dispute that. In fact, Dr. Harrington acknowledged in cross-examination that that diagnosis could have an impact on testing.

[292]  Dr. Dollin indicated that an unclear question with respect to the frame of reference would have increased the grievor’s anxiety. She indicated that receiving different directions before and during the interview would have further increased the grievor’s anxiety, undermining her performance.

[293]  The employer disputed that the grievor was symptomatic during the testing and argued that she did not establish that she was in fact suffering on the day of the PQP. I disagree with the employer that the medical evidence demonstrates that the grievor was doing well. To the contrary, Dr. Dollin’s medical notes state that the grievor had forgotten to take her medication around the time of the PQP and that she began to feel her usual mood and focus problems, anxiety, and responses to stresses at work, which led the grievor to see her in December 2010.

[294]  The employer was aware of the grievor’s accommodation request. Both Ms. Langevin and Ms. Lamothe acknowledged that they were aware of it. Ms. Langevin admitted that she had been responsible for making the arrangements.

[295]  Ms. Langevin also stated that she was not aware of the concerns Dr. Moncion had specified in 2005 for the grievor about a quiet place to work and minimal distractions or the need for the multisensory presentation of information. Ms. Langevin testified that she was not presented with any documentation about the grievor’s accommodation needs before the PQP; nor was she advised of them verbally. However, she did acknowledge that she was aware of the agreement to provide double the preparation time and 15-minute breaks (Exhibit G‑3).

[296]  As the person responsible for the PQP and the accommodation request, it was incumbent on Ms. Langevin to follow up on the grievor’s functional limitations, which had all been documented. No evidence was presented as to why she did not think doing so was necessary. It is trite law that when an employer is presented with an accommodation request, it is incumbent upon it to request up-to-date medical information detailing the employee’s functional limitations and to provide a reasonable accommodation based on those limitations.

[297]  The grievor sought clarification about the focus of the PQP before the day of the interview as to whether it would focus on Environment Canada or the Government of Canada as a whole. Her evidence was that Ms. Langevin advised her that the PQP would focus on the Government of Canada as a whole and that questions about a specific department would clearly indicate the department they applied to. Although Ms. Langevin disputed this evidence, it is notable that she and Mr. Enei disagreed on the focus of the last question. She testified that it was focused on Environment Canada, while he testified that it was open-ended and that it could have been answered with respect to any assignment.

[298]  The grievor’s evidence was that when she encountered the final question, she was upset and surprised by the reference to “our department”. It was the exact type of question for which she had wanted clarity because of her unique situation. To seek clarification, she interrupted her preparation time to find Ms. Langevin, who simply told her to answer it the way she thought she should. Although she asked for additional time to address the interruption, Ms. Langevin arrived at the previously appointed time to bring the grievor before the PQP board. The grievor informed the board of her concerns. It informed her to answer the way she wished (Exhibit E‑30).

[299]  I do not find Ms. Langevin’s testimony credible when she stated that she did not leave the testing area and that the grievor did not have to look for her. Taking into account the established facts and the evidence as a whole, I prefer the grievor’s recollection of the events, which was that an interruption occurred and that she was not properly informed as to the focus of the knowledge question.

[300]  As described in Dr. Dollin’s uncontradicted evidence, an interruption in the preparation time would have impacted the grievor to the point of her being less functional. I accept that because of her medical condition, the interruption made it more difficult for her to concentrate.

[301]  Although I agree with the employer that Dr. Dollin’s assessment was based on her description of what the grievor reported to her and how she felt during the PQP, I find the grievor’s version most credible. Dr. Dollin’s evidence is consistent with the grievor’s evidence at the hearing.

[302]  Therefore, I find that on a balance of probabilities, the grievor’s disability heightened her anxiousness and led to a deterioration in her focus as the interview progressed, which impacted her ability to properly answer the final question – the knowledge question. That resulted in her failing the PQP.

[303]  I find most disturbing the employer’s complete disregard of the grievor’s request to be reassessed with the proper accommodation. Mr. Billingsley could have and should have exercised his authority in this respect. Instead, he completely ignored her request and left it to Ms. Langevin to address.

[304]  I find it concerning that Ms. Langevin, Executive Resourcing Advisor for the Executive Group Services Directorate at INAC in 2010, had zero knowledge of the duty to accommodate.

[305]  It was fully within the employer’s discretion to reassess the grievor with the proper accommodation. It should have provided her the opportunity to be reassessed, followed up with her to obtain an up-to-date list of her functional limitations from her treating physicians and, in consultation with her and those physicians, establish the proper accommodations so that she could have participated equally in the PQP. But unfortunately for the grievor, it did not.

[306]  Furthermore, the employer failed to provide any reasonable explanation as to why it would not exercise its discretion to reassess the grievor with the proper accommodation.

[307]  Through Ms. Langevin’s evidence, on redirect, the grievor was offered an EC‑07 position because she had graduated from the CAP but had not passed the PQP. She passed all the CAP assignments, and her performance evaluations indicated that she met all EX-01 competencies. She was successful in the SELEX process, and it was determined that she was likely to succeed. She did not pass the PQP on account of failing one question as a result of the employer’s failures to provide her with clarity on the knowledge question and to address the interruption.

[308]  I find that the employer did not accommodate the grievor’s disability to the point of undue hardship during the PQP and after it when it failed to reassess her with the proper accommodation. The employer’s failure to provide the grievor with reasonable accommodation for her disability leads me to conclude that the employer engaged in a discriminatory practice contrary to s. 7 of the CHRA. Therefore, I find that the grievor was demoted without cause, contrary to the FAA.

VII. Remedy

A. The impact on the grievor

[309]  The grievor testified that she was distressed by the employer’s failure to accommodate her during the PQP. She found it extremely upsetting and difficult both personally and professionally. After she failed the PQP, she testified that she needed to take medical and vacation leave for approximately a month to cope, before starting in her EC-07 role.

[310]  She testified it was personally and professionally humiliating for her to return to INAC and to suddenly be in a lower position in the department in which she had started working as a lawyer several years before. She felt belittled and dismissed by the employer’s failure to address the situation after she failed the PQP. After several years, she continues to feel that she is very behind and that she lost everything she worked for in becoming a lawyer.

[311]  Dr. Dollin testified that in February 2011, the grievor was very distressed and discouraged. She assessed her as being moderately depressed at the time, with a justifiable fear of regressing to her worst periods of depression. Whenever she discussed her situation, she became very anxious. She continued to experience anxiety and depressive issues as part of her cyclical condition, which were aggravated by the workplace issues.

[312]  The grievor’s family incurred other financial implications as a result of the salary drop. As indicated in the applicable EC and LA collective agreements, the EC‑07 position was compensated at $107 105, and the LA‑2A position at $122 893. In addition, when she signed on to the CAP, her best five years were already behind her, so the impact on her pension was significant.

[313]  In cross-examination, she indicated that she applied for several EX positions at the time but because of the DRAP, there were few opportunities. Several were discontinued, or she was not able to qualify for them.

B. The grievor’s position

[314]  Because the grievor was demoted without cause, she is entitled to be made whole with respect to the demotion. She is entitled to reinstatement at the LA‑2A group and level as well as full compensation for all lost income and benefits, including performance bonuses and expenditures on legal fees, since the date of her demotion. She is also entitled to interest at the applicable Canada Savings Bond rate on all amounts owed her. Furthermore, to be made whole, she is entitled to damages for pain and suffering and special compensation under s. 226 of the Act arising from the discriminatory nature of the demotion.

[315]  Discrimination as a result of a failure to accommodate has implications for the health, well-being, and dignity of those affected. The grievor relied on Stringer v. Treasury Board (Department of National Defence), 2011 PSLRB 110; and Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35, in which the Public Service Labour Relations Board (PSLRB) awarded damages for pain and suffering in the amounts of $10 000 and $8000, respectively. The PSLRB also awarded special compensation in the amounts of $17 500 in Stringer and $10 000 in Cyr to address the impact of the reckless actions of the employer.

[316]  The Canadian Human Rights Tribunal (CHRT) has also set standards for awarding damages for pain and suffering as a result of discrimination in the workplace. In both Johnstone v. Canada Border Services, 2010 CHRT 20; and Richards v. Canadian National Railway, 2010 CHRT 24, the CHRT awarded the complainants $15 000 for pain and suffering and $20 000 in special compensation for the employer’s refusal to accommodate on the basis of family status. In addition to being reinstated to the LA-2A position with full compensation for all lost income, the grievor requested damages under ss. 53(2)(e) and 53(3) of the CHRA.

C. The employer’s position

[317]  The employer argued that the grievor asked to be appointed to an EX‑01 position. She never occupied such a position. She was never demoted from one. The remedy that would flow from a demotion case would be a reappointment to the CA position, which, given that the program no longer exists, would result in a workforce adjustment situation. The Board does not have jurisdiction to appoint the grievor to another position. Under s. 82 of the PSEA, doing so is the PSC’s exclusive jurisdiction.

[318]  There was no demotion and no failure to accommodate. For those reasons, the grievance should be dismissed.

D. Conclusion

[319]  As I determined, the grievor was demoted without cause from her LA‑2A position when she was deployed to an EC-07 position as a result of her graduation from the CAP and her failure on the PQP at Environment Canada. Therefore, she is to be reinstated in her LA-2A position with full compensation for all lost income and benefits. As her counsel is aware, the Board does not have jurisdiction to award legal fees; nor can it award performance bonuses for work that was not performed.

[320]  The grievor is awarded $20 000 for pain and suffering and $20 000 in special compensation for the employer’s wilful and reckless conduct. She expressed the different emotions she experienced during this very difficult time, along with the humiliation and the fact that she lost everything she had worked so hard for.

[321]  As an indigenous woman, through her hard work and perseverance, she was on her way to an accomplished career as a lawyer in the federal public service. It was all taken away because she failed one question in a PQP as a result of the employer’s failure to properly accommodate her. Up to this day, she has felt as though she was passed over and belittled.

[322]  I noted during the hearing that she often had difficulty containing her sadness. And $20 000 is barely enough to address the humiliation she felt in being returned to a team that she had helped create as part of her first CAP assignment. Unfortunately, it is the maximum that can be awarded under s. 53(2)(e) of the CHRA.

[323]  The employer should also have been fully aware that the duty to accommodate requires both a creative approach and that all parties concerned be involved in the process. The accommodation process should not be based on assumptions or speculation by either its employees or management.

[324]  It was astonishing to hear Ms. Langevin state that she did not see the grievor’s medical information; nor did she request an update to the grievor’s functional limitations before agreeing to the accommodation request.

[325]  More so, I find it egregious that Mr. Billingsley never responded to the grievor’s request for retesting. He knew what was at stake for her but refused to exercise any of his powers to address the situation. I consider that reckless conduct by the employer.

[326]  For these reasons, the grievor is awarded $20 000 in damages under s. 53(3) of the CHRA.

VIII. Conclusion

[327]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

IX. Order

[328]  The grievance is allowed.

[329]  Within 90 days, the employer shall reinstate the grievor at the LA‑2A group and level with full compensation for all lost income and benefits, including unpaid professional fees, from the end of her salary protection in March 2013 to the date of her reinstatement. Pursuant to s. 226(2)(c) of the Act, since this is a grievance involving a demotion, I have the power to award interest. The employer shall also pay her simple interest on that amount calculated yearly at the Bank of Canada’s established rate.

[330]  Within 90 days, the employer shall pay the grievor damages in the amount of $20 000 under s. 53(2)(e) of the CHRA for pain and suffering and $20 000 under s. 53(3) of the CHRA for its wilful and reckless conduct and indifferent attitude towards her. Again, pursuant to s. 226(2)(c) of the Act, the employer shall also pay her interest on both amounts calculated yearly at the Bank of Canada’s established rate beginning from the demotion date.

[331]  The grievor’s medical file and related medical reports shall be sealed.

[332]  I will remain seized for a period of 120 days with respect to any issues that arise in implementing this order.

June 21, 2019.

Chantal Homier-Nehmé,

a panel of the Federal Public Sector Labour Relations and Employment Board