Date:  20190729

File:  EMP-2016-10822

 Citation:  2019 FPSLREB 77

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

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

Between

Pamela Meneguzzi

Complainant

And

Director of Public Prosecutions

Respondent

and

OTHER PARTIES

Indexed as

Meneguzzi v. Director of Public Prosecutions

In the matter of a complaint of abuse of authority - paragraph 77(1)(a) of the Public Service Employment Act

Before:  Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant:  Clea F. Parfitt, counsel

For the Respondent:  Richard Fader, counsel

For the Public Service Commission:  Louise Bard, analyst

For the Canadian Human Rights Commission:  Sasha Hart, counsel

Heard at Vancouver, British Columbia,

July 24 to 26, 2018, and March 5 to 7, 2019.

REASONS FOR DECISION

I. Complaint before the Board

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

[2]  The complainant, Pamela Meneguzzi, filed a complaint with the Board on November 15, 2016, under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) because she was not appointed to a general counsel position with the respondent, the Director of Public Prosecutions, by reason of an alleged abuse of authority based on bad faith and discrimination.

[3]  For the reasons that follow, the complaint is dismissed. The complainant did not establish that she was not appointed by reason of an abuse of authority based on bad faith or discrimination.

II. Summary of the evidence

[4]  The complainant testified on her own behalf. The respondent called Rosellina Dattilo, Deputy Chief Federal Prosecutor for the respondent’s British Columbia (BC) region, and Todd Gerhart, Chief Federal Prosecutor for the BC region; they formed the assessment board for the process to which the complainant applied. The respondent also called Mark Erina, Team Leader, and Gerry Sair, Counsel in the Economic Crime Group, who provided references for the complainant in that process. I found no contradiction between the testimonies on the facts. However, there were certainly differences of perspective and interpretation.

[5]  The complainant works for the Public Prosecution Service of Canada (PPSC) as senior counsel classified at the LP-3 group and level. In 2016, she applied to a process for a general counsel position classified at the LP-4 group and level. There were five candidates, two men and three women, for three positions. The two men and one of the women were successful. The complainant failed for not making the grade on two essential qualifications: interpersonal relationships and leadership. The necessary rating established by the selection committee was a grade of “More than Capable”.

[6]  The complainant joined the tax prosecution team in 2000. Her team leader was Bruce Harper. In 2012, Mr. Erina succeeded Mr. Harper.

[7]  The complainant introduced in evidence her performance appraisals. The respondent objected, as they were irrelevant to the complaint that challenged her assessment for the appointment. She countered that they were relevant to challenging the assessment. I accepted the performance appraisals; they have arguable relevance.

[8]  The performance appraisals cover April 1, 2001, to March 31, 2012. They are generally full of praise for her performance. She either met or exceeded expectations. In the first one, Mr. Harper writes that she is recognized as a leader by her peers. In 2008-2009, he emphasizes her attention to detail and her analytical skills.

[9]  Mr. Erina’s performance appraisals begin in 2013. They also speak of the complainant’s attention to detail and her capacity to be lead counsel on complex tax cases. In 2013, he mentions the importance of working with junior lawyers as a role model. In 2014, her performance is rated as outstanding. In addition to her exceptional work as a prosecutor, it notes that she demonstrates leadership and is a team player. A comment is made about improvement in that she should know when a battle is lost and not pursue it. The example given is the interpretation of a Supreme Court of Canada (SCC) decision, in which her view differed from the department’s view. She persisted for a long time with the opinion that her interpretation was the correct one.

[10]  In 2015, Mr. Erina’s comments (as supervisor) were modified following a discussion with the complainant. As this issue is central to the allegations of bad faith in the staffing process, I will reproduce here the initial comments and then the version that appeared in the complainant’s performance appraisal. The paragraphs before and after the paragraphs I underlined remained the same and speak to the general tone of the appraisal, as follows:

...

Pam continues to display outstanding knowledge of the law and good judgment in her work. As I have stated on prior occasions, her attention to detail and ability to identify and analyze issues is second to none at ECG [Economic Crimes Group]. As Team Leader, I often consult with Pam on issues or ask that she review my (or others) written work. She is my first choice of counsel to take on files with difficult, obscure issues.

[Initial comments:]

Pam faced a unique challenge this year in dealing with my criticism that some ECG members found her difficult to work with. Pam was offered the opportunity to participate in coaching sessions with a consultant to address this concern. To her credit, Pam readily accepted the offer and successfully completed the sessions. Her attitude and approach to this matter was extremely professional and demonstrated a genuine concern not only for herself but the ECG team in general.

[Final version:]

In regards to personal development, Pam worked with a coach to help improve her core competencies. Her approach to this matter demonstrated a high degree of professionalism and concern not only for herself but the ECG team in general.

Pam continues to demonstrate leadership at ECG. She routinely assists her colleagues and peers. She serves as a role model for junior counsel in terms of skill and judgment.

...

[Emphasis added]

[11]  The complainant testified to what had occurred that gave rise to Mr. Erina’s 2015 work appraisal comments. She had had a conflict with a junior counsel assigned to a file she had expected to lead as the senior counsel. However, the other counsel did not take direction well. Mr. Erina supported the junior counsel, and the complainant appealed to the Chief Federal Prosecutor (Mr. Gerhart’s predecessor; I will refer to him as the “former CFP”) to intervene.

[12]  In the end, the complainant met with the former CFP and Mr. Erina, who told her that her treatment of junior counsel was problematic and that no one wanted to work with her. She was taken aback; her performance appraisals had said that she was pleasant to work with, and she remembered working well with Mr. Sair as junior counsel.

[13]  The former CFP reassured her that it would not lead to a harassment complaint. Rather, he suggested that she receive executive leadership coaching to help her lead cases more comfortably. That coaching was provided to her.

[14]  Mr. Erina testified at the hearing that as much as he appreciated the complainant’s thoroughness, expertise, and professionalism, her relationship with junior counsel was often difficult, and several had said that they would rather not work with her. It was obvious from her testimony that she disagreed with the idea that the coaching was related to any deficiency on her part. It had been provided to improve her leadership skills, not to correct any problem she might have had with junior counsel.

[15]  As part of her senior counsel duties within the group, the complainant was part of the Appeal Committee, which was a group of senior lawyers (at the senior or general counsel levels) who advised the chief federal prosecutor as to whether the PPSC should pursue matters to the appeal level. According to the complainant, this group was composed mostly of men. When she was part of it, it consisted of six men and two women. When she took a leave of absence in 2016, Mr. Erina replaced her, which left only one woman on the committee. Both assessment board members, Mr. Gerhart and Ms. Dattilo, were part of the committee.

[16]  For the appointment process, the candidates had to submit two references. One had to be from the immediate supervisor, who in the complainant’s case was Mr. Erina, her team leader, and one had to be from a junior counsel with whom the candidate had worked. She chose Mr. Sair.

[17]  The complainant believed that she had a good relationship with both of her references. As a new team leader, Mr. Erina sought to change the office culture, to make it friendlier and more positive. The complainant strongly supported that change and had many informal exchanges with Mr. Erina.

[18]  In their testimonies, Mr. Erina and Mr. Sair mentioned their positive work relationships with the complainant. Mr. Sair testified that he enjoyed working with her because he could learn a great deal from her, and she was a model of professionalism.

[19]  They both provided references willingly and thought that they had provided very positive feedback. The complainant saw their references in another light. I will summarize and quote from both references in the following paragraphs.

A. Mr. Erina’s reference

[20]  Question 1 of Mr. Erina’s reference asked the referee how the candidate performed in different areas of her work. The subheadings were skills and knowledge, professionalism, judgement, practice management, communications, interpersonal relationships, and leadership. Mr. Erina praised the complainant for her skills and knowledge and provided several examples of her excellent work. All the questions were answered positively. Under “Interpersonal Relationships”, Mr. Erina wrote the following:

Pam works hard at building meaningful and healthy relationships in the workplace. She is a team player who cares about her colleagues and the success of the ECG [Economic Crimes Group] generally. She is a “go to” person for her colleagues on all matter of issues. She is always willing to assist a colleague regardless of how busy she may be at the time.

[21]  Under “Leadership”, Mr. Erina wrote as follows:

...

I routinely rely on Pam to assist me with providing advice to ECG members. I routinely consult with Pam on operational issues of concern to the ECG. Her assistance to me as team leader is invaluable in the proper functioning of the group.

As noted above, Pam serves as a “go to” person for her colleagues on all matter of issues. She routinely peer reviews written work prepared by her colleagues at their request or mine.

Finally, Pam has given presentations in formal training sessions both to her colleagues and investigators.

[22]  Question 2 was worded as follows: “Was there ever an occasion or circumstance in which you found that the candidate did not demonstrate one or more of these attributes? If so, please provide details.” Mr. Erina wrote the following in response:

There have been instances where some of Pam’s colleagues have found her difficult to work with as co-counsel on tax evasion prosecutions. The essence of their complaints was that Pam took an overly autocratic approach to the file (i.e. demanding that co-counsel do this or that task by a certain date) and not valuing their contributions. As a result, they felt marginalized and not part of the team.

I believe that the root of these problems is Pam’s intense drive and focus on detail. She clings to her views strongly and wants things done in a certain way. The result can be a “rigidity” that makes it difficult, to some degree, for her to accommodate or trust the work of others. I draw support for my opinion from the fact that these problems were isolated to situations where Pam was paired with a colleague and serving as lead counsel. In other words, they were situations were [sic] Pam was ultimately responsible for the decisions made on the file.

These problems were brought to Pam’s attention by former Chief Federal Prosecutor Bob Prior 1-2 years ago (I do not recall the exact date). As a result, Pam worked with an employee relations counsellor for several weeks to improve her ability to work with colleagues.

Subsequent to her counselling, there have been no further incidents of note. Pam is a meaningful contributor to a positive work environment. She treats her colleagues and the support staff in a friendly, respectful and courteous manner. As I noted above, Pam genuinely cares about building good relationships with her colleagues. It came as a complete shock and surprise when she was confronted with her behavior by Bob Prior.

[23]  Mr. Erina testified that he had been co-counsel with the complainant and that he had experienced her forceful demands to produce work by a certain deadline. However, he based his overall assessment on his experience as the team leader managing situations in which she conflicted with other counsel assigned to her files.

[24]  Mr. Erina testified that he truly believed he had given the complainant a good reference but that he had to be honest and truthful as a referee. He felt that he had done his best to compensate for whatever negative comment could be perceived by adding that he had noted a definite improvement. The last question asked whether he would rehire the candidate, and he answered, “Yes, without hesitation.”

[25]  The complainant took the view that Mr. Erina had deliberately undermined her by describing the coaching as counselling. As stated, she did not see the coaching as corrective but rather as a way to improve her leadership competencies.

[26]  The complainant alleged that in fact, Mr. Erina wanted the general counsel position and that he had undermined her candidacy to advance his own in the future. At the hearing, he denied wanting that position. He stated that he was happy in his team leader position.

B. Mr. Sair’s reference

[27]  Mr. Sair’s reference also praised the complainant for her skills and knowledge, as well as her firmness. However, at several points, the reference shows a certain discomfort with her behaviour, but it is qualified to decrease the impact of any negative comment. Under “Professionalism”, Mr. Sair wrote the following:

Pam deeply cares about her work and about doing the “right” thing on files, including to stay charges or not approve charges on files where that is the appropriate decision.

Pam is punctual with her filings, detailed with her preparation and fair, though often tough, with opposing counsel. She takes firm stances on her positions at time [sic], but does not unfairly jeopardize the prosecutions in doing so. She has a very strong intestinal fortitude even where her decisions may prove unpopular by the investigative agencies that ask for her advice and guidance.

[28]  Under “Judgement”, Mr. Sair wrote as follows:

Pam has very sound legal judgment. She does not decide things too quickly nor does she operate in a vacuum. She seeks out the advice of peers on issues – including peers in other regions of Canada who may have dealt with similar issues.

Critical thinking is a very strong suit that Pam possesses. She is also adaptive to changes in the work environment. That said, she can be rigid at times in her views, but she is at heart a team player and will take the team approach when appropriate.

Pam sometimes could benefit from being a little softer in her approach and use slightly better judgment when her views differ from her colleagues and she strongly disagrees with them.

[Emphasis in the original in italics]

[29]  His comments under “Interpersonal Relationships” read as follows:

Pam takes steps to build meaningful relationships. She takes an interest in co-workers personal lives, brings cookies and treats to the office, supports in-office functions to celebrate events (i.e. a co-worker getting married or having a baby) and is friendly within the office.

Pam is not the best at conflict-avoidance within the office. If she firmly believes in her position on a file (e.g. a legal position) or has a particular way of engaging in a practice approach or style, she may butt heads with co-workers in demonstrating whey [sic] she is correct. She could improve somewhat in this area. That said, I would characterize it as trying to lead and also putting the file first even if it might (rarely) cause some friction with a co-worker.

[Emphasis in the original in italics]

[30]  His comments reflected only praise for her leadership, as follows:

Pam is a very good leader. She provides direction to her co-workers and is quick to check to ensure that her comments and feedback are understood and discussed. She is an excellent collaborator and engages freely in open and honest discussion about all manner of subjects.

I feel that Pam wants her co-workers to be successful and is free with her busy schedule to allow for time to give advice and feedback. When others are successful she is quick to praise. She provides excellent constructive feedback; she also resolves issues in productive ways

[31]  For question 2, which asked whether there was any occasion in which the candidate did not demonstrate the qualities sought, Mr. Sair answered with the following:

Pam fights for what she believes in. There have been times, though very infrequent over eight years, where she has perhaps been too rigid in her approach on a file and has taken a stance in contradiction to that suggested by a colleague who is a junior to her on a file.

I would temper this note to say that when this occurred – which was very infrequently – Pam did so because she believed she was correct and also believed that it would achieve the best result for the file on which she was working in an expeditious and ethical way (Pam is very ethical).

[32]  He described the complainant’s “most significant strengths” in the following manner:

Pam’s greatest strengths are her work ethic, her ability to get all tasks – including complex tasks - completed efficiently and quickly, and her legal acumen to navigate difficult legal issues.

Pam is one of the hardest working lawyers in the office. Her files are always “ready to go” and she often does the little things thoroughly and well in advance of deadlines. She is rarely caught unprepared.

Pam does complex appeal work as she understands the nuances of the law better than most. In that regard, she presents as a great resource in the office.

[33]  Question 4 dealt with “the individual’s most significant needs for development”. Mr. Erina simply answered that the complainant should rely more on her intuition. Mr. Sair answered as follows:

Pam would be better served if she was perhaps a little less rigid in her approach on some issues. While having strong convictions on about [sic] a topic, being able to express those views in a ‘softer’ manner might benefit Pam in the future.

I have no other concerns. Pam is exceptionally qualified for this position.

[34]  Finally, for Question 5, which asked whether as the supervisor, the referee would rehire the candidate, Mr. Sair answered the following: “If I was Pam’s supervisor, I would most certainly rehire her. Her energy, work ethic, moral compass, legal acumen and intelligence are all top shelf.”

[35]  Mr. Sair testified that when he wrote the reference, he was thinking of both his direct experience with the complainant as well as experiences that other counsel had related to him.

[36]  In cross-examination, both Mr. Erina and Mr. Sair were asked why they had not given more fulsome answers to illustrate the complainant’s strengths as a team member and as lead counsel. They answered that they had done what they thought was sufficient. They both thought that she amply deserved the job. Mr. Sair stated that he was very surprised to learn that she had not been appointed.

[37]  Mr. Sair was asked why he had written only about cookies and celebrating life events under “Interpersonal Relationships”. He answered that he thought this section was for personal as opposed to professional relationships. He was asked if he perceived the demeaning aspect of such a comment, and he responded that he did not, at all. He really did think thoughtfulness was one of the complainant’s qualities. Mentioning “a co-worker getting married” actually referred to his own experience. When he got married, she organized a small celebration in the office for him and his fiancée, and they had been quite touched.

[38]  Mr. Erina was asked about a comment he apparently made to the complainant that the three women would have to compete for the same job, since the two men were sure to be appointed. He answered without hesitation that it was clear that the two men were “high flyers” not because they were men but because they had all the requisite qualities — they were not only superior lawyers but also superior mentors, well liked by everyone who worked with them.

[39]  The complainant alleged that Mr. Sair and Mr. Erina had consulted each other to prepare their references, notably because they both referred to her as being somewhat rigid. They both vigorously denied doing so. I have no reason to disbelieve them. As Mr. Sair pointed out, if there were any commonalities between the references, perhaps that is because they referred to the same reality. Both provided forthright explanations of their references, which clearly were based on their experience with the complainant.

[40]  There was one incident involving Mr. Sair that is completely unrelated to this complaint, but is telling for the complainant’s perspective.

[41]  Mr. Sair had a dog. He explained that at one point, the dog had major medical issues, and he felt that he could not leave it alone at home, so he brought it to work. The dog bit the complainant through her clothes, leaving marks on her skin, which eventually left a scar. It also defecated in her office (incontinence being one of its medical issues).

[42]  The complainant testified at length about this incident, to show that she had in fact been quite gracious about the whole thing, which showed her emotional maturity. Thus the assessment of “emotion management” (a component of interpersonal relationships, according to the poster announcing the staffing process) had been defective, since on that occasion, she had displayed superior emotional management.

[43]  At the hearing, Mr. Sair testified that the complainant had indeed been very gracious about the dog incident and that he had never known the severity of the bite until he saw the pictures prepared for the hearing. It never occurred to him to include the incident in the reference.

[44]  Mr. Gerhart and Ms. Dattilo both testified to the decision-making process that led to the selection of the appointees and the reasons they had failed the complainant on the areas of interpersonal relationships and leadership.

[45]  According to Ms. Dattilo, the More than Capable grade was chosen for all essential qualifications, given the importance of the general counsel role. The general counsel must be a leader; he or she is responsible for the most complex litigation and must be able to deal with all subject areas. It is essential that the general counsel have superior people skills, given his or her interactions with both PPSC employees and others in law enforcement, agencies, and courts. Because of the high performance expectation, the candidate had to be able to demonstrate that he or she is more than capable; this places a particular emphasis on performing well during the interview.

[46]  The assessment board applied a rating guide that human resources advisors provided. Experience was assessed from the initial application. The complainant was screened in. Knowledge, abilities, skills, and personal suitability were assessed from the interview and the references. She was scored More than Capable for specialized skills and knowledge, professionalism, judgement, practice management and communication. She was scored “Capable” for interpersonal relationships and leadership.

[47]  The rating guide includes performance indicators. Under “Interpersonal Relationships”, several behaviours are included that show active involvement in developing and fostering positive relationships with and among colleagues and partner stakeholders (e.g., judicial officers, investigators, or clients). Under “Leadership”, the examples fall under three headings: “Coaching and Mentoring”, “Influencing Others”, and “Teamwork”.

[48]  At the hearing, the complainant strongly disputed the assessment made of her, since her contention was that she did a great deal to foster interpersonal relationships, was an influencer, and believed in teamwork. The examples she gave were mainly about the work she had done with law-enforcement agencies, court officials, and client departments.

[49]  Ms. Dattilo explained that the questions were meant to give the candidates the opportunity to present themselves, their work, and their strengths. They were not asked hypothetical questions but rather were asked to explain the challenges of their work and how they met them. In preparing their answers to the questions, the candidates were informed of what each question was intended to measure. For example, Question 1 was worded as follows:

Explain the most complex case you have had conduct of.

What made it complex?

What were the major issues?

How did you demonstrate leadership during the litigation?

[50]  The questionnaire specified that this question was designed to measure legal skills (knowledge and abilities), professionalism, practice management, interpersonal relationships, and leadership. For each of those topics, behavioural examples from the rating guide were provided. Under “Interpersonal Relationships”, the examples given were “such as building relationships and emotion management”; under “Leadership”, the examples were “such as coaching and mentoring, influencing others and teamwork”.

[51]  According to Ms. Dattilo’s assessment, the complainant failed to use the opportunity to show leadership skills, such as mentoring or coaching, and did not include interpersonal relationships in terms of helping and encouraging those she worked with. Her answer was very much about legal and practical challenges and how she met them.

[52]  Similarly, for Question 4, which dealt with leadership, the complainant failed to give details on leading a team, providing support, or offering coaching or mentoring. Her answer was very good from a practice management aspect, but it failed to address how the team and its individuals were led and supported.

[53]  It was pointed out to Ms. Dattilo that according to the assessment scale, “Competent for successful job performance” included Capable, More than Capable, and Outstanding. This would suggest that imposing a More than Capable standard was simply a way to make it more difficult for women to accede to higher positions.

[54]  Ms. Dattilo expressed strong disagreement with this idea. Setting a More than Capable grade was setting a standard of excellence. According to her, there was no reason women would not be able to achieve that standard.

[55]  Ms. Dattilo also explained that the assessment was global — the answers were not compartmentalized. As an example, she explained that question 2 asked about chief legal trends. The complainant mentioned one in answer to that question, but she did bring up another trend in another question, which was credited to her answer at question 2.

[56]  All candidates were provided with six questions to answer. They had half an hour to prepare, after which was their interview, which was scheduled for one hour. The candidates answered the questions as they wished. The complainant did not make use of the full hour. When she finished answering the questions, she was asked if she wanted to add anything; she declined the offer.

[57]  The assessment board had decided ahead of time not to ask further questions from the candidates during the interview, to avoid favouring some by prompting answers. Ms. Dattilo remembered asking a single question in the course of all five interviews, which was posed to the complainant. It was about who was responsible for scheduling.

[58]  In analyzing the references, Ms. Dattilo stated that they did not demonstrate the superior people skills required for the position. She referred to Mr. Sair’s statement that the complainant was perhaps not the best at conflict avoidance, and the rating guide spoke of demonstrating diplomacy and encouraging open and constructive discussions and different perspectives.

[59]  In the end, the assessment board concluded that the concerns expressed by the referees reflected the fact that the topics of interpersonal relationships and leadership were not sufficiently developed in the interview. The complainant was very competent and legally skilled. However, she could not be assessed as More than Capable for interpersonal skills and leadership.

[60]  At the hearing, Ms. Dattilo discussed the appointees’ interview answers and references. She pointed out the additional material that was lacking in the complainant’s interview responses and in her references.

[61]  In all three cases, the appointees gave detailed interview answers about managing difficult cases that entailed complex legal issues and involved several stakeholders — law-enforcement agencies, opposing counsel, witnesses, and the judicial system. These elements had also been part of the complainant’s answers. However, in addition, all three showed how junior counsel was mentored and coached and how they had sought to develop a team approach. In their references, all three were praised for their encouragement of junior counsel and their willingness to listen to differing opinions. Both male appointees mentioned the impact difficult cases had on family life; one had stayed in touch with his young son via Skype while out of town for an extended period because of a lengthy trial, and the other had prepared a challenging case with an aggressive defence counsel while staying up at night rocking his newborn to sleep.

[62]  Ms. Dattilo testified to the fact that she knew the complainant personally. They had socialized at one time but no longer, for reasons unrelated to work. Ms. Dattilo was also aware of the situation involving Mr. Erina and the former CFP because she often met Mr. Erina for coffee, and they would discuss office matters. However, knowing about this incident simply provided context for Mr. Erina’s comments.

[63]  Ms. Dattilo was asked to comment on the answer in Mr. Sair’s reference concerning bringing cookies and marking life events and specifically whether she considered it a gendered comment. She answered that she did not; to her, kindness was not exclusively female. She also said that Mr. Sair’s reference had emphasized the role the complainant played as a source of information and guidance. However, she also noted the comment about not being the best at conflict avoidance. Ms. Dattilo made the distinction between being firm, which is a requirement for counsel, and being rigid or undiplomatic, which is a hindrance for a leadership position.

[64]  Generally, references were received before the interviews were held. In an email exchange before the complainant’s interview, Ms. Dattilo writes, “Todd, all good references so far. The only negative comment, which Gerry and Mark both tempered, was in describing how Pam deals with others when she disagrees with them.” Mr. Gerhart answered, “Good - no real surprises there.”

[65]  Mr. Gerhart testified to the process. His assessment matched Ms. Dattilo’s. They had decided together on a More than Capable standard, given the responsibilities of the general counsel position. He also commented on the lack of detail in the complainant’s answers about coaching and mentoring. Her examples showed superior skills in practice management, but there was little detail on who was helped on the team and how. She spoke of assigning tasks and a feedback loop, but she gave no examples of how she would mentor or coach co-counsel.

[66]  Mr. Gerhart, like Ms. Dattilo very much disagreed with the suggestion that a ranking of Capable would have been sufficient and would have allowed more women to be qualified. He answered that women did not need to have the standards lowered. Like Ms. Dattilo, he perceived no gender bias in the references, whether they spoke of cookies and treats or the need for a softer approach. He did not see providing treats as a female prerogative. He added that as a matter of fact, the team leader often brought treats to the office. He gave as an example of a softer approach one of the appointees’ interview answers, which explained in detail how he would boost a junior counsel’s confidence through the steadfast monitoring of his or her witness interview techniques.

[67]  Mr. Gerhart had had one working experience with the complainant, which took place when they had been tasked with making a PowerPoint presentation on criminal and regulatory prosecution. According to him, the experience did not go well. He found that it was impossible to reach an agreement with her to develop a joint presentation. She had her own plan and was unwilling to modify it in the least to integrate his suggestions. In the end, they gave separate presentations.

[68]  At the hearing, Mr. Gerhart did stress that he had set it aside in his mind for the appointment process. He was confident that he had relied solely on the interview notes and the references. His experience might have served to explain his reaction to Ms. Dattilo’s email about the way the complainant dealt with others, when he stated, “no real surprises there.”

[69]  In short, Mr. Gerhart and Ms. Dattilo testified that the complainant failed to answer the interview questions as completely as their standard required for interpersonal skills and leadership. They had no doubt that she met all the other requirements for her legal skills, professionalism, and practice management. The references did not contradict their assessment. Although they both knew the complainant before the process, they consciously decided not to use that knowledge for the assessment; they based their assessment strictly on the interviews and the references. Ultimately, the final decision rested with Mr. Gerhart as the assessment board chair, but in fact, they were in agreement.

[70]  When the complainant learned that she had been eliminated for failing on two essential qualifications, she was stunned and angry. She was certain that she had done very well in the interview. She immediately suspected that the references had caused the unsatisfactory evaluation. She confronted Mr. Erina and Mr. Sair to find out what they had written, which made them both very uncomfortable. Mr. Sair was certain that she would be selected for the position. Mr. Erina, although less certain, had sincerely wished that she would be selected. Several exchanges took place, both in person and by email. Mr. Gerhart had to intervene. He told Mr. Erina that he should not answer any further questions.

[71]  Following an informal discussion with Mr. Gerhart, the complainant provided him with a very thorough document to explain why her interview responses were sufficient to meet the More than Capable standard. She based her demonstration on the Treasury Board Secretariat’s “Key Leadership Competency” profile to show that she had properly answered all leadership and interpersonal skills questions in her interview. She then discussed the references. If they were negative, it was because they were biased. She ended her document on the following note: “I am confident that my references should fully support finding that I am more than capable in all areas assessed. I hope that there is a fruitful review of your assessment including follow with [sic] references.”

[72]  Mr. Gerhart testified at the hearing that he carefully reviewed the complainant’s further submissions and that he discussed them with Ms. Dattilo but that together, they concluded that her submissions did not alter their assessment of her not meeting the More than Capable grade for leadership and interpersonal skills. They believed that the appointees had demonstrated those skills at that grade, but not the complainant.

III. Summary of the arguments

A. For the complainant

[73]  The complainant alleges that the respondent abused its authority in the application of merit criteria in this process as it is marked by both bad faith and discrimination.

[74]  The assessment board relied on references that were discriminatory on the basis of sex. It accepted references that were submitted in bad faith; it also showed a bias against the complainant.

[75]  The assessment board relied on prior knowledge of the complainant and on negative information provided by her team leader, Mr. Erina. It failed to consider additional assessment materials, such as performance evaluations, despite having inadequate material to assess her.

[76]  The assessment board did not provide the references in a timely way to the complainant, such that she could not seek a proper reassessment.

[77]  The complainant raised the issue of the assessment board’s obligation to ensure the reliability of references, relying on Hill v. Deputy Minister of Public Works and Government Services, 2017 FPSLREB 21, for that position. I will address this in my analysis.

[78]  The test for discrimination is well established. The complainant quoted Hotte v. Treasury Board (Royal Canadian Mounted Police), 2016 PSLREB 122 at para. 19, as follows to state the test for prima facie discrimination:

[19] The grievor must show a connection between a prohibited ground of discrimination and the distinction, exclusion, or preference of which he or she complains or that, in other words, the ground in question was a factor in the distinction, exclusion, or preference ....

[79]  Discrimination need only be a factor in the adverse decision, and it need not be intentional. It may be subtle and related to unconscious ideas or assumptions that inadvertently create barriers to the advancement of a group of persons (see Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (CHRT)).

[80]  Once prima facie discrimination is established, in an employment context, the employer must show that it had a legitimate work-related reason for acting as it did.

[81]  The discrimination claim turns on the words “rigid” and “rigidity” that are found in both references and that are used to describe some of the complainant’s behaviours. The following is from her written submissions:

...

It is a recognized issue for women, including by several witnesses here, that there can be a significant tension for women between being firm, assertive and strong and an expectation, often unconscious, that women should be likeable, compliant, pleasant and obliging. This can make it hard for women to be recognized for being firm, assertive and strong, and can mean that when women are firm, assertive and strong, they are considered to be unpleasant and unlikable. This is obviously especially an issue where, as here, being firm, assertive and strong are key components of the position a woman is doing. A number of the listed criteria for the position of GC require firmness and resolve.

...

[82]  Therefore, according to the complainant, it is reasonable for the Board to conclude that when the criticism of “rigidity” is used, it applies to the very qualities required for the position, and that gender is at least a factor giving rise to such criticism. In fact, in her reference, one of the appointees was praised for never having been in a conflictual situation, which Mr. Gerhart alluded to. However, the complainant was seen as rigid for holding firm positions. It is reasonable to see that a gender stereotype was in play. Mr. Sair’s interpersonal relationships comments, which were made only in the context of a stereotypical view of women (cookies and treats, babies, and life events), reinforce this view.

[83]  The complainant also argues that the referees were biased against her. She submits that negative encounters had coloured their perception of her. At the same time, she argues that the referees were deprived of proper instructions for their references, which deprived them of the opportunity to provide more complete references.

[84]  According to the complainant, the references were misleading and invalid, Mr. Sair’s because he relied on what others would have told him, and Mr. Erina’s because he implied that she had received corrective action (counseling as opposed to coaching) when in fact it had not been presented as such to her.

[85]  The complainant claims that the appointment process was faulty. Inadequate information was given to the candidates, the pass mark was set too high, and the rating guide was not provided. At the interview stage, the assessment board did not seek any clarification from her, which she would gladly have provided. Finally, the assessment board did not consider her further submissions, and it made a final decision before she saw the references, which prevented her from making a fulsome reply.

B. For the respondent

[86]  This case involves a simple appointment process. After an initial screening-in based on her application, the complainant was assessed through an interview and references. The assessment board had set the passing grade at More than Capable for all candidates. It graded her interview answers and her references at the Capable level for the areas of both interpersonal relationships and leadership, based on a global assessment. Both assessment board members clearly showed the deficiencies in her interview answers, compared to the appointees’ interview answers, to justify the assessment.

[87]  Essentially, the Board is being asked to reassess the complainant and to make findings of bad faith and discrimination.

[88]  It is clear from the Board’s case law and that of its predecessor the Public Service Staffing Tribunal (PSST) that its role is not to redo an assessment, despite a complainant’s dissatisfaction. Moreover, both in the legislation and in case law interpretation, hiring managers are given wide discretion when deciding essential qualifications and how they will be assessed.

[89]  The respondent submits that the evidence supports the assessment board’s conclusion based on the interview and references that not giving the complainant the More than Capable grade was a reasonable decision.

[90]  The referees are not the decision makers and therefore are not expected to be without bias. In fact, because a candidate chooses a referee, it is expected that the candidate will choose someone with a favourable bias. However, it is expected that referees will be honest.

[91]  The complainant chose Mr. Sair and did not raise concerns about having to ask her team leader for a reference until she learned the result of the assessment. The respondent cited Pellicore v. President of the Canada Border Services Agency, 2010 PSST 23, to support its view about the role and limits of references. I will come back to this decision in my analysis.

[92]  According to the respondent, there is no evidence of bias or bad faith on the part of the referees or the assessment board. Everyone provided reasonable and objective reasons for his or her actions in the process at issue.

[93]  As concerns the discrimination claim, the respondent states that there is no basis for it. The complainant had to show that there was some evidence that her gender was a factor in her assessment. She alleges that her references were discriminatory in terms of reflecting culturally biased negative stereotypes. She means the cultural stereotype that women would be soft, compliant, and pleasant. She bases the discrimination allegation on the fact that her referees spoke of the desirability of being less rigid and of adopting a softer approach (in addition to praising her for bringing cookies to work, which she stated is a female stereotype).

[94]  As for Mr. Sair, although he spoke of a “softer” approach, his remarks were tempered and were certainly outweighed by his praise for the complainant, including her firmness and ability to stand up for her convictions. He spoke of personal touches but testified at the hearing that in his mind, bringing food was not exclusively done by women — men in the group also contributed regularly.

[95]  Generally, Mr. Erina’s reference was very positive. Drive and tenacity are presented as positive features. He was asked a specific question about the past, and he felt the need to be honest. He tempered his response by mentioning “isolated” incidents and noted the progress since then.

[96]  The assessment board members saw no gender discrimination in the references. The comments could just as well have been made about a man. Both were aware of the danger of unconscious or potential bias. They were clear that the complainant’s assessment had nothing to do with her gender.

C. For the Public Service Commission

[97]  The Public Service Commission (PSC) provided submissions on the Board’s jurisdiction under the PSEA. In them, it confirmed that discrimination in an appointment process is an abuse of authority (see Rajotte v. President of the Canada Border Services Agency, 2009 PSST 25).

D. For the Canadian Human Rights Commission

[98]  The Canadian Human Rights Commission (CHRC) was served with a notice of this complaint, pursuant to s. 78 of the PSEA, which reads as follows:

78  Where a complaint raises an issue involving the interpretation or the application of the Canadian Human Rights Act, the complainant shall, in accordance with the regulations of the Board, notify the Canadian Human Rights Commission of the issue.

[99]  Although it is notified every time there is an issue involving the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA), the CHRC rarely offers submissions. It did so in this case. It took no position on the merits of the complaint. Rather, it sought to guide the Board with an overview of the case law and the applicable legal principles.

[100]  According to the CHRC, the discrimination issue should be approached in a two-step analysis, as follows:

1. Can the complainant prove, on a balance of probabilities, the existence of a prima facie case of discrimination on the basis of sex, contrary to s. 7 of the CHRA)?
2. If there has been a prima facie infringement of the CHRA, can the respondent meet its burden of proving an alternate non-discriminatory explanation for its conduct or otherwise rebut the prima facie case by establishing a statutory defence under the CHRA?

[101]  The SCC has often stated the test for prima facie discrimination as follows (for example, see Moore v. British Columbia (Education), 2012 SCC 61): the complainant has one or more characteristics protected under the CHRA, she was subject to adverse treatment, and her characteristic was a factor in the adverse treatment. It is sufficient that the characteristic be a factor; it need not be the sole reason.

[102]  In other words, in this case, the CHRC stated that the complainant would need to demonstrate that her gender was a factor in the assessment of her candidacy and in the respondent’s decision to eliminate her from the process.

[103]  Since overt discrimination is relatively rare, a tribunal must examine all the circumstances to determine whether an inference of discrimination can be drawn from the evidence, meaning that such an inference is more probable than other explanations. The exercise is highly fact-specific.

[104]  Once prima facie discrimination is established, the employer must defend its actions; that is, it must provide a non-discriminatory explanation. The complainant then needs to show that the explanation is a pretext, not the real reason, and that in fact it is more probable than not that discrimination was a factor. The bona fide occupational requirement is not a defence in this case; nor did the respondent mention it.

[105]  The CHRC mentioned three decisions that turned on alleged stereotypes in an employment context. They are briefly reviewed in the following paragraphs.

[106]  The first decision is Farris v. Staubach Ontario Inc., 2011 HRTO 979, in which the Human Rights Tribunal of Ontario (HRTO) found that Ms. Farris, the complainant in that case, had been discriminated against on the basis of her sex in the course of her employment. She claimed that she had been denied promotions because of her gender, and in the end, she was terminated. The employer claimed that her attitude and character had held her back and had finally led to her termination. Both parties claimed a poisoned work atmosphere, and each blamed the other.

[107]  Ms. Farris worked as a business-leasing agent and was paid by commission. She was hired in 1997 into an office that then grew in the subsequent years. By 2001, she had four male colleagues and one female colleague. It was an extremely competitive workplace; each agent had to fight for clients and commissions.

[108]  In the end, based on all the evidence it received, the HRTO found that Ms. Farris’ gender was a factor in her adverse treatment by the employer and its agents. She was a difficult person, said the HRTO, but that did not explain why behaviour that was excused in her male colleagues was considered blameworthy in her case. The HRTO found that more was at stake than an unpleasant relationship with a difficult colleague because of the following factors: some agents spread a false rumour that Ms. Farris was having an affair with the owner, which the HRTO found was a demeaning statement based on her gender; the other agents and staff referred to Ms. Farris by several demeaning terms, often sexualized; and aggressive behaviour was a common feature of all the agents, but only Ms. Farris was blamed for it.

[109]  The second decision is Ogunyankin v. Queen’s University, 2011 HRTO 1910, in which Dr. Ogunyankin, the complainant, alleged that comments made about him reflected racial stereotypes. Although the HRTO acknowledged the possibility of unconscious biases, it found that in this case it could not, on the basis of the evidence, draw an inference of racial discrimination.

[110]  Dr. Ogunyankin was denied a promotion. He argued that his race and ethnic origin had been a factor in the decision. He was a black man of Nigerian origin, which he claimed had been a factor in the weak references he obtained to support his application for a promotion within the faculty of medicine and in the promotion committee’s assessment.

[111]  That case provides a discrimination analysis that is useful in a case such as this one, in which the prima facie discrimination is difficult to distinguish from the substantial discrimination. I will come back to it in my analysis.

[112]  The third decision is Correia v. York Catholic District School Board, 2011 HRTO 1733, in which a man of East Indian origin twice applied for a superintendent position with a school board and was denied both times. Each time, a Caucasian woman was appointed. Mr. Correia was the only non-Caucasian applying for the positions. He was the only one who had some superintendent experience. The HRTO found that he had established prima facie discrimination.

[113]  The HRTO found that the school board’s explanation for preferring the chosen candidates — experience as school principals, which Mr. Correia lacked — made sense. However, it also concluded that one of the assessment board members had assessed Mr. Correia’s management style (“authoritarian”) less on the basis of evidence and more on the basis of a stereotypical view (perhaps wholly unconscious) of South Asian men.

[114]  Despite this finding, the school board’s explanation for choosing the two selected candidates was satisfactory. Even had Mr. Correia been Caucasian, he still would not have obtained the position, as he was not as qualified as the two selected candidates. Nevertheless, the HRTO made a finding of discrimination with respect to the stereotype applied to South Asian men.

IV. Issue

[115]  The issue can be worded as follows: Did the respondent not appoint the complainant by reason of an abuse of authority due to discrimination or bad faith?

V. Analysis

[116]  Section 77 of the PSEA provides a complaint mechanism to people who believe they have been denied a position by reason of abuse of authority. The term “abuse of authority” is not defined in the PSEA, but in s. 2(4), it specifically mentions bad faith as being an instance of abuse of authority. As the PSC stated, the PSST recognized discrimination as a form of abuse of authority, notably in Rajotte.

[117]  I was considerably guided in my analysis by the HRTO’s decision in Ogunyankin. In that case, the HRTO expresses much discomfort with the tests usually applied to establish prima facie discrimination: the usual prima facie discrimination test and the Shakes test (see Shakes v. Rex Pak Limited, [1982] 3 C.H.R.R. D/1001). The tests can be stated briefly in the following terms.

[118]  In the prima facie discrimination test, the complainant has one or more characteristics protected under the CHRA, she was subject to adverse treatment, and her characteristic was a factor in the adverse treatment. It is sufficient that the characteristic is a factor; it need not be the sole reason (see Moore).

[119]  In the Shakes test, the complainant was qualified for the particular employment opportunity and was not hired, and someone no better qualified but lacking the distinguishing feature subsequently obtained the position.

[120]  The problem is that it is difficult to reach the third step in the prima facie test, which is whether there is a link between the protected ground and the adverse treatment, without considering the respondent’s actions. However, this is supposed to be the second part of the analysis, once prima facie discrimination is established, as to whether the respondent provided a non-discriminatory explanation of its actions.

[121]  The problem with the Shakes test is the included premise that the complainant was qualified for the position. However, this is the very issue in dispute between the parties. The complainant in this case believes that she was fully qualified, and the respondent states that she was not.

[122]  In Ogunyankin, the HRTO resolves the problem by accepting prima facie discrimination and then analyzing whether the respondent’s explanation is non-discriminatory, which involves two further steps: 1) Is the explanation reasonable? 2) Is it more probable than not that discrimination was a factor, despite the respondent’s explanation?

[123]  The HRTO provides the guiding principles for this test by quoting from a divisional court decision. The relevant passage is as follows:

...

[87]  The principles that apply in the context of this Tribunal’s analysis of racial discrimination cases were reviewed and approved by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884 (CanLII), where the Court stated (at paras. 75 to 79):

Many discrimination cases, such as this case, do not involve direct evidence that a complainant’s colour or race was a factor in the incident in question. A tribunal must draw reasonable inferences from proven facts.

The Tribunal correctly outlined the principles that apply in cases involving an allegation of racial discrimination. ...:

(a)  The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b)  There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is the effect of the respondent’s actions on the complainant;

(c)  There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(d)  Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

...

In cases where discrimination must be proved by circumstantial evidence, there are no bright lines. The Tribunal must determine what reasonable inferences can be drawn from proven facts. These are difficult, nuanced cases that are important to both the parties, to society and the neighbourhoods in which we live. The Tribunal notes (at para. 17):

In this case, as in many cases alleging racial discrimination, there is no direct evidence that race was a factor in the officer’s decision to take the actions that he did. As a result, the issue of whether the officer’s actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the following well-established principles applicable to circumstantial evidence cases.

(1)  Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.

(2)  It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.

(3)  A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

(4)  There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

(5)  The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

The Tribunal confirms that it did not have to find that race was the only or the major factor leading to the discriminatory conduct. It also did not need to find that there was an intention to discriminate, as racial stereotyping will often stem from unconscious biases or beliefs. The Tribunal was well aware of the difficult, nuanced question that it had to determine. It states (at paras. 18-19):

In determining whether the inference of racial discrimination is more probable than the explanations offered by the respondent officer, I also need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level ....

...

[124]  That case concerned racial discrimination, but the principles can certainly be applied in cases of gender discrimination. Like racial discrimination, gender discrimination may stem from unconscious biases or beliefs, and it may be difficult to find direct evidence of the discrimination; one needs to rely on circumstantial evidence.

[125]   The complainant also argues there was bad faith on the part of the referees and the assessment board. The PSST addressed the issue of bad faith in Cameron v. Deputy Head of Service Canada, 2008 PSST 16, basing its definition on the SCC’s decision in Finney v. Barreau du Québec, 2004 SCC 36. Essentially, bad faith is not only intentional, it also encompasses serious recklessness or carelessness. As stated as follows at paragraph 56 of Cameron:

[56] Thus, bad faith could be established by evidence of acts so exceptional that the Tribunal cannot conclude that they were carried out in good faith, because they are inexplicable and incomprehensible in light of the PSEA.

[126]  Bad faith can be established by direct or circumstantial evidence (see Cameron, at para. 57).

A. Discrimination

[127]  In Lincoln v. Bay Ferries Ltd., 2004 FCA 204, the Federal Court of Appeal stressed the importance of not confusing the two steps in the discrimination analysis, which are first, whether there is prima facie discrimination, and second, whether the respondent provided an adequate response to show that its actions were reasonable. There remains a third step, which is whether despite the respondent’s explanation, it remains more probable than not that the complainant’s gender was a factor in the appointment process.

1. Prima facie discrimination

[128]  I find that the complainant has established a prima facie case of discrimination, based on several factors. The process involved five candidates, three women and two men. Mr. Erina intimated that the three women would have to compete for one job, since the two men were sure to be appointed. Indeed, the two men were appointed, and only one of the three women succeeded. The complainant spoke of a high turnover among the women in the office, which the respondent did not dispute. The Appeal Committee, a senior advisory group to the Chief Federal Prosecutor, was composed mainly of men. The complainant referred to the fact that she was held to be rigid, yet she perceived herself as firm. Seeing an attribute as negative in a woman, yet positive in a man, may be an indication of discrimination. When considering circumstantial evidence to establish whether there was discrimination, I believe it more prudent to set a low threshold for prima facie discrimination.

2. The respondent’s explanation

[129]  According to the complainant, the referees’ discriminatory behaviour was providing references that associated her with trivial behaviour often linked to women in our society (treats, cookies, and life events), and criticizing her behaviour that would not be criticized in a man (being too rigid and needing a softer approach). The assessment board’s discriminatory behaviour was accepting these references and not being aware of the underlying bias against women.

[130]  The complainant alleged that Mr. Sair gave a discriminatory answer to the question on interpersonal relationships by speaking of her friendly gestures instead of her professional interactions. His explanation was that he understood the question to be about personal interactions as opposed to professional interactions. He thought that he should speak of informal interpersonal relationships, such as those that occur in a work setting but on a more personal level — bringing treats and marking birthdays and other life events.

[131]  I do not see those comments as negative. I believe Mr. Sair that they were meant as a compliment. I did not hear anything from the assessment board that would show that those comments were perceived as belittling; on the contrary, they show the complainant’s human, pleasant side. All the respondent’s witnesses testified to the importance of food and friendliness in an office, and they all stated that such behaviour was welcome and exhibited by both men and women. I would add that Mr. Sair wrote elsewhere in his reference about the complainant’s professionalism.

[132]  What the assessment board took from Mr. Sair’s references that was somewhat negative had to do with conflict avoidance and unwillingness to compromise on the complainant’s part.

[133]  This was the second aspect of the complainant’s discrimination claim — what is considered firmness in men becomes rigidity in women. She saw discrimination in the fact that both Mr. Erina and Mr. Sair referred to her rigid approach, intimating that they thought that being firm was not a quality for women.

[134]  All the respondent’s witnesses praised the complainant for her strength of conviction, her professionalism, and her energy. There is a difference between being firm and being rigid. One is a quality; the other, a defect. I do not believe that within her workplace, and nothing the complainant presented as evidence or argument convinced me otherwise, these features are praised for one gender and disparaged for the other.

[135]  The respondent presented a credible explanation for attributing the Capable grade to the complainant when it assessed her leadership and interpersonal skills, through both the interview and the references. The desired qualities were not gender specific, and the assessment was not about expected female behaviour but rather expected general counsel behaviour. Ms. Dattilo spoke of the importance for general counsel to be diplomatic in dealing with others. I see the qualification of rigidity as negative in that light not because it is unfeminine but because it is generally undesirable. I cannot see diplomacy as a feminine or masculine trait but rather as a quality that can be found (or not) in both genders.

3. Is it more probable than not that the complainant’s gender was a factor in the appointment process?

[136]  In Ogunyankin, the HRTO found that Dr. Ogunyankin’s race had not been a factor in the denial of the promotion. There was no indication of any bias, and the justification as well as the process had been very thorough. By contrast, in Correia, the HRTO found that characteristics that were attributed to Mr. Correia did not correspond to any evidence but instead to what seemed to be a stereotype in the mind of one of the board members. Similarly, in Farris, the adverse treatment Ms. Farris suffered was evidently linked to her sex — the disparaging comments, the rumors, and the insulting language.

[137]  The complainant argued that a gender bias can be subtle and unconscious. The question was put to all the witnesses, who all agreed it was true. So do I. However, in the context of this process and of the PPSC, I do not believe that the complainant’s gender was a factor in the decision.

[138]  The complainant’s main gender-bias argument was the fact that what would be considered a quality in a man (firmness) is perceived as a fault in a woman that is termed “rigidity”. According to her, men’s and women’s roles were stereotyped in the assessment board’s minds in that men were allowed to be overbearing while women had to be nice and compliant.

[139]  As stated, I do not see the flexibility required from the general counsel (being diplomatic and accepting different viewpoints) as a gendered quality. Moreover, I saw no evidence that at the PPSC, men’s and women’s roles are fixed and expected.

[140]  The evidence I received on the respondent’s workplace in many ways contradicts the complainant’s assertions. I do not think that the PPSC favours overbearing men and compliant women. The two male appointees were warm and caring, according to the references that were given for them. They both gave examples of challenges caused by their family responsibilities and the conflict they felt between doing their jobs and nurturing their children. Ms. Dattilo did not strike me as a soft and compliant person but rather as self-assured and assertive. It was repeated a number of times that the present head of the PPSC is a woman.

[141]  The complainant failed to receive the passing grade for reasons associated with her way of approaching conflictual situations and for a lack of detail in her interview relating to the interpersonal and leadership qualities expected of a general counsel. From all the evidence I heard, I cannot conclude that her gender was a factor in her assessment. I find that the complainant has not proven that there was discrimination in the appointment process.

B. Bad faith

[142]  The complainant alleged bad faith on Mr. Erina’s part because he mentioned the “counselling” she had received. His explanation was clear and convincing; he believed that he had to answer truthfully, and so he did. The complainant tried to show that the coaching she received had nothing to do with any deficiencies in her performance. That simply makes no sense. The coaching was the direct result of the dissatisfaction created by her leadership style with junior counsel. Mr. Erina gave a truthful response and tempered its impact considerably by stating that she was “... a meaningful contributor to a positive work environment.”

[143]  The complainant alleged that Mr. Sair had relied on what others had told him. In fact, at the hearing, he did testify about what others had told him; however, he insisted that what he wrote in the reference was what he had seen personally. I have no reason to doubt him.

[144]  I cannot see bad faith in what Mr. Erina and Mr. Sair wrote. They wrote their own honest assessments, and they mostly praised the complainant for her abilities.

[145]  In addition, I do not believe that the references had the weight the complainant seems to think they had in her overall assessment. Mr. Gerhart and Ms. Dattilo both considered the references as generally positive, which they were. The assessment board chose not to grade her at More than Capable on interpersonal relationships and leadership based on a global assessment that included the interview, in which her answers were not as complete and as detailed as those of the appointees.

[146]  The complainant argued that the assessment board showed bad faith by relying on defective references and by not exploring further to assess her on a more complete profile. According to her, it also showed bad faith by setting the standard too high, thus eliminating two of the three women candidates.

[147]  The complainant also pointed to what she termed was a generally faulty process: inadequate information to the candidates, a pass mark set too high, the rating guide not being provided, no clarification sought during the interview, and no consideration given to her further submissions, and she was denied access to the references before the assessment board made its final decision.

[148]  Mr. Gerhart and Ms. Dattilo explained their rationale for deciding as they did.

[149]  As stated in ss. 31(1) and 36 of the PSEA, the assessment board had a great deal of discretion in setting its requirements and deciding on its assessment methods, which were explained at the hearing. The high standard of More than Capable was used for a very senior position that requires very high standards. The complainant met the majority of the position’s requirements.

[150]  The same information was provided to all candidates. There was no ambiguity, and in preparing for the interview, the candidates were in fact given more information as to what was being evaluated, and how, than is usually the case in interviews. The assessment board had decided ahead of time not to ask any further questions from the interviewees, to ensure fairness in not prompting some more than others. As long as the same standard is applied to everyone and it has a reasonable explanation, the Board will not intervene.

[151]  The complainant argued that her further submissions should have been considered. The assessment board did read them, but it was not convinced that her interview answers should be reassessed. The same elements were still missing. She was not given access to the references, but doing so would have been highly unusual. The references speak for themselves; they are not to be interpreted by their subject.

[152]  The complainant cited Hill as an example of a situation in which a assessment board committed an abuse of authority by not taking the necessary steps to ensure that a reference was a reliable source of information. In that case, a negative assessment by the referee of two essential qualifications (dependability and adaptability) led to Mr. Hill’s elimination from the appointment process.

[153]  The facts in Hill are quite distinguishable. Mr. Hill raised the issue about his reference being biased before the assessment board made its decision. In addition, the referee had implied to Mr. Hill that his reference would be negative. Mr. Hill and the referee, who was his immediate supervisor, had a history of accommodation requests and related grievances. The Board ruled that the assessment board should have set the reference aside after learning of the circumstances of Mr. Hill’s relationship with his supervisor and that it should have found another method to assess the two essential qualifications.

[154]  I see no parallel with the situation in this case, save for the fact that the complainant also had to ask her immediate supervisor for a reference. Her relationship with Mr. Erina was cordial and respectful. His reference was very positive. He testified that he felt that he had to be truthful when he was asked if there had ever been an instance in which the qualities sought had not been demonstrated. He certainly did not question the complainant’s competence and professionalism. He gave positive answers on the areas of interpersonal relationships and leadership. He answered truthfully that he was aware of one instance in which he had been directly involved. He added that the situation had been corrected.

[155]  The complainant did not object to providing Mr. Erina’s name as a referee, and she did not question the content of the reference until she learned that she had failed in the process. Disagreeing with the content of a reference is not the same as pointing to a clear bias that can be predicted ahead of time, as in Hill. I cannot see Mr. Erina’s reference, which ends with the very strong message that he would rehire the complainant without hesitation, as biased. I do not think that the Board should intervene in a case in which a referee simply provided an honest reference, as established by the evidence at the hearing. I note too that the assessment board relied on Mr. Sair’s comments; the complainant chose him as a reference on her own.

[156]  The respondent for its part cited Pellicore for the use of references by an employer. Mr. Pellicore had failed in an appointment process on two essential qualifications, “team player” and “values and ethics”. The assessment board assessed his first reference, from his immediate supervisor, as unsatisfactory. At the informal meeting that followed Mr. Pellicore’s notification that he had been eliminated, he succeeded in convincing the assessment board that it should check two further referees, whose names he provided. They answered the structured questionnaire and essentially confirmed the first referee’s answers.

[157]  The PSST found that there was no abuse of authority. The assessment board had given Mr. Pellicore a fair opportunity with his references. The fact that they were negative about the two essential qualifications did not show them to be biased.

[158]  The PSST concluded that there was no abuse of authority on the part of the assessment board in relying on the references to assess the two qualifications and in choosing not to consider other sources of information, such as the performance appraisals. I agree that an assessment board can choose its assessment tools, as stated in the PSEA, and provided that they are applied reasonably and fairly, as I believe they were in this case, the Board should not intervene further.

[159]  The Board does not reassess candidates but will consider whether there was an abuse of authority in the appointment process, including the assessment of candidates (see Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 20).

[160]  In my view, the assessments were reasonable and the complainant has not established an abuse of authority in the application of merit in this appointment process. The references were honest and in large part positive; the referees cannot be blamed for pointing out weaknesses. The appointees’ interview answers were more detailed than were the complainant’s answers for interpersonal relationships and leadership, in terms of fostering team spirit, coaching, and mentoring, all of which were indicated on the questions the candidates prepared before the interview. Moreover, the references given for the appointees showed that they were tremendous mentors and caring colleagues.

[161]  I believe that the assessment board properly assessed the candidates’ qualifications on a global basis through the interview and reference checks. The evidence before me leads to a finding that there was no abuse of authority in the appointment process and, more particularly, in the complainant’s assessment in the appointment process. I see nothing in the complainant’s assessment that was unreasonable, biased, or groundless. Therefore, I cannot find any bad faith in the appointment process.

[162]  I conclude that the complainant has not proven on a balance of probabilities that there was discrimination, bad faith or any other action on the part of the respondent that amounted to an abuse of authority in this appointment process.

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

(The Order appears on the next page)

VI. Order

[164]  The complaint is dismissed.

July 29, 2019.

Marie-Claire Perrault,

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