Date:  20190829

File:  EMP-2016-10292

Citation:  2019 FPSLREB 84

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

christophe gomy

Complainant

and

Deputy Minister of Health

Respondent

and

OTHER PARTIES

Indexed as

Gomy v. Deputy Minister of Health

In the matter of a complaint of abuse of authority - section 77(1)(a) of the

Public Service Employment Act

Before:  Nathalie Daigle, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant:  Sandra Guéric, Professional Institute of the Public Service of Canada

For the Respondent:  Philippe Giguère, counsel

For the Public Service Commission:  Claude Zaor, written submissions

Heard at Montreal, Quebec,

January 10 and 11, 2019.

(FPSLRB Translation)

REASONS FOR DECISION (FPSLREB TRANSLATION)

I. Introduction

[1]  Christophe Gomy, the complainant, applied for a position as a team leader in the Controlled Substances Programme with Health Canada (HC or “the respondent”) classified at the SG-SRE-05 group and level. His candidacy was rejected at the written exam stage. He alleged that an abuse of authority occurred because the assessment tool did not fairly assess the merit criteria and because the marking was biased and arbitrary. At the hearing, he withdrew his personal favouritism allegation and his allegation that the person responsible for marking his exam did not have the required competencies.

[2]  The respondent denied abusing its authority in the nomination process.

[3]  The Public Service Commission (PSC) was not present at the hearing, but it made written submissions on its applicable policies and guidelines. It did not take a position on the merits of the complaint.

[4]  For the reasons that follow, the complaint is allowed. The complainant demonstrated that on a balance of probabilities, the respondent abused its authority in this appointment process.

II. Background

[5]  In September 2015, a job opportunity notice was posted on the Government of Canada’s job-search site to fill a team leader position in the Controlled Substances Programme classified at the SG-SRE-05 group and level (“the SG-SRE-05 position”), in Montreal, Quebec.

[6]  The complainant was a candidate in that appointment process. His candidacy was eliminated during the written exam stage because he did not obtain the passing mark for the essential qualifications of “Thinking and Acting” and “Service Orientation”.

[7]  Catia Messier was the regional manager, Regions and Programs Bureau, from April 2014 to August 2017. She was the manager responsible for this appointment process. She developed the written exam and was its only marker.

[8]  On March 9, 2016, a notice of appointment or proposed appointment was published for the position.

[9]  On March 24, 2016, the complainant made a complaint with the Public Service Labour Relations and Employment Board under s. 77 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA).

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

III. Issues

[11]  I must decide the following issues:

1. Did the respondent abuse its authority with respect to the assessment tool and marking method?
2. Did the respondent abuse its authority by being biased toward the complainant in the appointment process?

IV. Analysis

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

[13]  The complainant presented testimony in support of his position. He also called Christiane Brown, a specialist with the Controlled Substances Programme, to testify. The respondent called Ms. Messier to testify.

A. Issue 1: Did the respondent abuse its authority with respect to the assessment tool and marking method?

[14]  The complainant explained that he has been working at HC since 2007. His substantive position is as a product safety inspector classified at the SG-SRE-04 group and level (“the SG-SRE-04 position”) in Longueuil. In 2011, he qualified for an appointment process to fill regional compliance and law specialists positions classified at the SG-SRE-05 group and level.

[15]  In 2012, he was in a pool of candidates for SG-SRE-05 positions. He was invited to occupy a position on an acting basis as a specialist with the Controlled Substances Programme in Montreal. However, he declined that offer for personal reasons.

[16]  Between April 1, 2013, and March 31, 2016, the complainant occupied on an acting basis a specialist position with the Controlled Substances Programme at the SG-SRE-05 group and level in Montreal. As part of his specialist duties, he conducted inspections of businesses operating in the field of controlled substances, i.e., narcotics, controlled drugs, targeted substances, precursor chemicals, and medical marijuana. As part of his duties, he assessed the application of the different regulations in those five areas. He acquired vast experience in each area over the years. He also collaborated on activities involving licence granting. Each month, he conducted two or more inspections of businesses in the Quebec region and the Atlantic provinces.

[17]  On March 31, 2016, his appointment on an acting basis was not renewed. Consequently, on April 1, 2016, he returned to his SG-SRE-04 substantive position in Longueuil.

[18]  Ms. Messier took up her position in the meantime, in April 2014, on an acting basis as the manager of the Controlled Substances Programme team. She was appointed to that position indeterminately in August 2015.

[19]  In September 2015, the complainant applied for the controlled substances team leader position. He was invited to write an exam.

[20]  On November 26, 2015, he was informed that his candidacy had been eliminated from the appointment process because he had not obtained the passing mark for two merit criteria, i.e., the Thinking and Acting and Service Orientation competencies.

[21]  The complainant requested an informal meeting with Ms. Messier, who was responsible for the appointment process. On November 30, 2015, during their meeting, he noted that there was no table of expected answers for the competencies assessed in the exam other than a document containing behaviours associated to the assessed competencies. When he spoke with his manager about the desired answers for the questions he had failed, he concluded that she had assigned marks completely arbitrarily and unfairly.

[22]  The complainant stated that Ms. Messier had explained to him that she had first awarded 7 marks for each answer, which she then increased or decreased based on the quality of the answer. Thus, she awarded 8 for a very good answer, 6 for an incomplete answer, and so on. The pass mark was 6 out of 10. For instance, if she felt that two things were missing from an answer, she marked it at 5, and the candidate did not achieve the passing mark. She added that she assigned an overall mark to each answer, with no specific marks for each desired component of the answer, as they were not predetermined.

[23]  The complainant found that marking method very subjective, as Ms. Messier had not prepared a marking grid indicating the components that should be in a correct answer and how many points would be attributed to each correct answer. Therefore, according to him, the marking was inconsistent across the exams.

[24]  He also learned that Ms. Messier had marked the exams alone, with no one else being involved.

[25]  The complainant specified that Ms. Messier had deducted points excessively and irrationally when marking his exam. As an explanation, she simply told him that he should have added certain components of additional information. For instance, for the Service Orientation criterion, question 9 required that the candidate write a letter to a pharmacist who wanted to understand the right of a specialist to enter an establishment and require confidential information. In his answer, the complainant touched on the rights accorded to HC representatives under the enabling legislation, the program, the issues, etc. He believed that he had listed everything that was needed. However, Ms. Messier told him that he should have added other information; for example, noting that only a small amount of confidential information would be gathered during an inspection, which then would be shredded.

[26]  The complainant responded to Ms. Messier that he did not agree with that statement. According to him, he could not guarantee to a pharmacist that only a small amount of confidential information would be gathered. He could also not state that the documents would be shredded because, in some cases, they must be kept, for investigation purposes. According to him, investigators know if they can destroy documents only after they have been examined. But as Ms. Messier had not prepared a list of possible correct answers in advance, he felt that she randomly identified additional answer components that he could have mentioned, without them necessarily being compatible with the enabling legislation.

[27]  As for the other merit criteria he failed, i.e., the Thinking and Acting competency, the complainant said that he received a similar answer. According to Ms. Messier, he could have added other information. It seemed to him that his manager invented answers on the spot that she would have wanted to find in his answer.

[28]  He left the meeting convinced that Ms. Messier had marked some exams more severely than others. According to him, the chosen marking method allowed her to eliminate candidates whom she did not want in the process, without considering merit.

[29]  As for Ms. Messier, she explained that the written exam administered to the candidates was used to assess two knowledge areas (legislation and regulations) as well as the Thinking and Acting, Service Orientation, and “Written Communication” competencies. For the questions used to assess knowledge, specific answers were developed and indicated on the written exam answer key. The exam was also used to assess in part other qualifications, i.e., “Respect for Diversity”, “Interpersonal Relations”, and “Teamwork”.

[30]  As for the three qualifications assessed entirely via the written exam, four questions served to assess the Thinking and Acting competency, three the Service Orientation competency, and one the Written Communication qualification. No expected answers were prepared for those qualifications. But a list of behaviours associated with the qualifications was noted in advance, which was developed using a document entitled Passeport interministériel: Employabilité (“the passport”). This passport, dated June 1998, was the result of an interdepartmental initiative advanced by the Quebec Council of Senior Federal Officials to promote vitality in the Quebec region in the area of La Relève. The passport aimed to support the mobility between departments and sectors of employees in the Quebec region and to ensure that those employees knew the expectations as to the competencies required to meet the current and future needs of the federal public service.

[31]  Ms. Messier noted that on page 6 of the passport, for example, the competency “[translation] Service Orientation” is defined as follows: “[translation] Understanding the needs of internal and external clients and meeting them based on defined service standards. If no departmental standards exist, refer to Treasury Board standards.” From that definition, the following list of behaviours is associated with that competency:

[Translation]

• be accessible and prioritize the delivery of a reliable and quick service adapted to the client’s needs;

• help the client clearly understand the services offered and the inherent costs, if any;

• treat the client fairly and courteously, considering its particular needs and respecting its rights;

• provide quality services as efficiently and economically as possible, with integrity;

• periodically assess service quality with the client, to improve it;

• establish partnerships within and outside the public service, to work together to achieve common goals.

[32]  Similarly, on page 9 of the passport, the “[translation] Thinking and Acting” competency is defined as follows:

[Translation]

Examine an idea, situation, or problem by considering all aspects with an open approach, identify the most relevant solution/orientation, and take the appropriate action within the required time.

[33]  After that definition is the following list of behaviours associated with that competency:

[Translation]

• gather, organize, manage, process, and validate information from multiple sources and assimilate it quickly;

• reconcile key elements, and establish relationships between them;

• identify practical solutions, and recommend and/or make a relevant decision;

• plan and carry out relevant activities within the required time, while considering priorities, to achieve the expected results;

• assess the results of the process, and make necessary changes;

• demonstrate judgment and initiative.

[34]  Ms. Messier explained that for the competencies assessed by the exam, she had prepared the answer key using some of but not all the behaviours listed in the passport.

[35]  For example, question 6 on the exam was as follows:

[Translation]

Your manager is in a meeting away from the office for the day. The administrative assistant forwards an important request to you from the Office of Controlled Substances, and the response is due before the end of the day. Your schedule is already very full, and in addition, you are not familiar with the file. What do you do?

[36]  The answer key for the exam contained the following as the desired behaviour for question 6 (this question assessed the Thinking and Acting and Service Orientation competencies):

[Translation]

Answer:

Thinking and Acting (10 pts)

• Gather, organize, manage, process, and validate information from multiple sources and assimilate it quickly

• Reconcile key elements, and establish relationships between them

• Identify practical solutions, and recommend and/or make a relevant decision

• Plan and carry out relevant activities within the required time, while considering priorities, to achieve the expected results

• Demonstrate judgment and initiative

Service Orientation (10 pts)

• Be accessible and prioritize the delivery of a reliable and quick service adapted to the client’s needs.

• Treat the client fairly and courteously, considering its particular needs and respecting its rights.

• Provide quality services as efficiently and economically as possible, with integrity.

[37]  Ms. Messier explained that to mark the complainant’s answer to that question, she verified how well it harmonized with the behaviours that she chose from the passport under the Thinking and Acting and Service Orientation competencies.

[38]  The complainant’s answer was the following:

[Translation]

1) I will gather the available information about the file and will review and analyze it, for understanding. I will identify the risks in the file and the risks associated with the tasks in my agenda. I will assess the impact of those risks on the different sectors. I will measure the impact and the likelihood of problems arising.

2) I will classify the risks in order of priority for all the risks (risks associated with the Office’s request, and risks associated with my tasks to accomplish). I will establish the desired results for each situation. What I wish will happen with each risk. I will develop strategies to achieve what I want (goal, outcomes).

3) I will select one of the strategies. I will apply and implement the strategy.

4) I will be monitoring.

Assess

Adjust

[39]  On reading the answer, Ms. Messier asked herself how well the complainant had met the expected behaviours, based on her exam answer key. She gave him a mark of 5 out of 10 for the Thinking and Acting qualification, as she believed that he had not responded with the following behaviours:

Gather, organize, manage, process, and validate information from multiple sources and assimilate it quickly.

Identify practical solutions, and recommend and/or make a relevant decision.

Plan and carry out relevant activities within the required time, while considering priorities, to achieve the expected results

[40]  However, she was of the opinion that he had met the following behaviours:

Reconcile key elements, and establish relationships between them.

Demonstrate judgment and initiative

[41]  In summary, she explained that the complainant’s answer lacked clarity and depth and that it did not explain his actions. For instance, he should have examined the possibility of delegating certain tasks, asking for help, pushing back some deadlines, cancelling certain tasks, etc. He had to organize his work to be able to respond to the request. Thus, based on the scale, some parts of the answer had been omitted, and the mark of 5 was justified.

[42]  Similarly, she assigned him 4 out of 10 for the Service Orientation qualification, as she believed that he had not met the following behaviours:

Be accessible and prioritize the delivery of a reliable and quick service adapted to the client’s needs.

Provide quality services as efficiently and economically as possible, with integrity.

[43]  She also believed that the behaviour of, “Treat the client fairly and courteously, considering its particular needs and respecting its rights”, was difficult to assess with respect to this question. Therefore, she did not rule on the validity of his answer with respect to that behaviour.

[44]  In short, she explained that his answer lacked depth. For example, he should have reviewed the request, validated his understanding of it, ensured that he understood it, obtained everything needed to respond to it, and made it a priority. In his answer, the complainant also did not mention that he would provide a response before the end of the day. Thus, based on the scale, several essential components of the answer had been omitted, and the mark of 4 was justified.

[45]  Similarly, Ms. Messier explained how she had marked the complainant’s answers to questions 7, 8, and 10. For example, Question 10 was as follows:

[Translation]

The new pharmacy inspection program includes activities to promote compliance. Describe your action plan to ensure an effective compliance promotion that meets the program’s objectives.

[46]  The answer key for the exam contained the following as an answer to question 10, which assessed the Thinking and Acting and Service Orientation competencies:

[Translation]

Answer:

Thinking and Acting (10 pts)

• Gather, organize, manage, process, and validate information from multiple sources and assimilate it quickly

• Reconcile key elements, and establish relationships between them

• Identify practical solutions, and recommend and/or make a relevant decision

• Plan and carry out relevant activities within the required time, while considering priorities, to achieve the expected results

• Demonstrate judgment and initiative

Service Orientation (10 pts)

• Help the client clearly understand the services offered

• Treat the client fairly and courteously, considering its particular needs and respecting its rights.

• Establish partnerships within and outside the public service, to work together to achieve common goals.

[47]  The complainant answered the question as follows:

[Translation]

In cooperation with my team, I will give them clear instructions as to the objectives.

We will need a list of what must be distributed/explained as information for pharmacists.

I will ask for contributions from my employees in terms of coming up with promotion methods. They will need to represent Health Canada and show personal, practical, and ethical conduct in their approach.

I will ensure that everything is transparent.

To find:

a) a list of information to promote

b) a means to distribute information (on-site, speaking, a brochure…) and select the best - consult with manager on it.

2) [sic] clearly explain to employees - ensure they understand - listen to suggestions

3) start providing information in pharmacies

4) Obtain feedback from employees

5) Adjust as needed with the National Office’s support

[48]  When she read that answer, Ms. Messier asked herself how well the complainant had met the expected behaviours, based on her answer key for the exam. For the Thinking and Acting qualification, she first marked him at 5 out of 10. She then changed it to 6 out of 10, during quality control, because she believed that overall, he had responded with the expected behaviours.

[49]  But she marked him at 5 out of 10 for the Service Orientation qualification, as she believed that he had failed to indicate the importance of creating partnerships with the college of pharmacists and the HC communications group.

[50]  Ms. Messier explained that she corrected one question at a time for all candidates. For example, she first marked the first question for all 13 candidates, then the second question, and so on.

[51]  She explained that while marking the exams, she applied a quality control procedure. Her method was as follows. First, she assigned an initial mark to each question for each candidate. Then, she reviewed all the candidates’ answers for the same question, to change the marks that she had given in light of all the candidates’ answers. Thus, she ensured that her marking was equally strict for all candidates.

[52]  In this way, while marking the exams, Ms. Messier noted an increasing number of possible good answers. She assessed the quality of answers based on the desired behaviours in the passport but, as indicated, her marking key for the exam did not include the components of the desired answers for the questions.

[53]  The evidence showed that the person appointed and the complainant had their marks raised for question 9 of the exam, which dealt with the Service Orientation qualification. She had received an initial mark of 5 out of 10. But it was increased to 6 out of 10, the passing mark, during quality control. The same thing happened with her answer to question 10.

[54]  In the end, Ms. Messier was the only person to correct the exams. No one else was involved in marking.

[55]  In summary, 7 of 13 candidates did not pass the exam and were not invited to an interview. In the process, 6 candidates were interviewed and 3 succeeded. Their names were added to a candidate pool.

[56]  Ms. Messier acknowledged that the specific answers for questions 5 to 10 (competencies) had not been determined in advance. So, she assessed the correctness, accuracy, and completeness of the candidates’ answers based on the behaviours listed in the passport for the merit criteria and on the entirety of all the candidates’ answers.

[57]  She also assigned marks based on a marking scale from 1 to 10. Specifically, the scale indicates the following for marks between 8 and 4:

[Translation]

8	The components of the answer are entirely satisfactory; some (one or two) additional dimensions were provided.
7	The components of the answer are satisfactory and meet all established expectations.
6	All components of the answer are satisfactory; however, some elements were omitted.
5	Some components of the answer were omitted; several dimensions were not addressed. The established expectations were not met, with a significant gap.
4	Many essential components of the answer were omitted; several dimensions were not addressed. Most established expectations were not met.

[58]  Finally, Ms. Messier explained that a passing mark of 60% had been established for each qualification and that that was communicated in the exam instructions.

[59]  At the hearing, the complainant argued that the appointment was not consistent with the values of fairness and transparency set out in the PSC’s Assessment Policy (“the PSC policy”), which applied as of the appointment process in 2015 (note: it was revised, and the new version came into force on April 1, 2016).

[60]  The complainant also argued that the PSC policy states that evaluations must be prepared and administered in an unbiased manner. That policy was established under s. 29(3) of the PSEA. He argued that as the Public Service Staffing Tribunal (PSST) affirmed in Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 24 at para. 53, the PSEA clearly indicates that deputy heads and their delegates must comply with the PSC policy established under s. 29(3).

[61]  The complainant emphasized that in accordance with the main requirements of the PSC policy with respect to evaluation, deputy heads must ensure that those responsible for evaluation “… are able to carry out their roles, responsibilities and duties in a fair and just manner …”. The PSC’s Guide to Implementing the Assessment Policy (“the Guide”) states the following:

…

Since the integrity of an assessment process could be the subject of review, it is important not only that it be fair but that it also be seen to be fair. For example, assessment board members should make reasonable efforts to minimize any appearance of bias in the process and the assessment board members should not let personal favouritism influence the outcome of the appointment process.

…

[Emphasis in the original]

[62]  The complainant submitted that contrary to the fundamental values of staffing fairness and transparency, the exam answer key, which his manager prepared, in this case was fair only in appearance and did not lead to transparency in the responses sought. He added that the exam, i.e., the evaluation tool, did not assess the candidates’ merit. He submitted that Ms. Messier used her discretion in bad faith with respect to the chosen evaluation method.

[63]  He referred me to Tibbs, at para. 73, which states the following:

[73] While abuse of authority is more than simply errors and omissions, acting on inadequate material and actions which are, for example, unreasonable or discriminatory may constitute such serious errors and/or important omissions to amount to abuse of authority even if unintentional.

[64]  He argued that an abuse of authority occurred for the following reasons and that it was more than simply errors or omissions. He claimed that the exam marking was subjective and arbitrary. The answer key for it contained very vague desired behaviours, and Ms. Messier provided a subjective and very weak description of the components she actually sought in the answers. For instance, she suggested to the complainant that he could have stated that confidential documents would be shredded in response to question 9. But, according to him, he could not state that because, in some cases, documents must be retained for investigation purposes. As the desired components of the answer were not included in the exam answer key, no one can know with certainty the essential and non-essential components of the answers. Note that the person appointed to the position also did not indicate in the answer that the confidential documents in question would be shredded.

[65]  The complainant also questioned the many changes to the marks assigned to the candidates’ answers. Ms. Messier stated that she adjusted the marks of all candidates during quality control. As for the appointed person, it seems that each time she did not obtain the pass mark for a qualification, her mark was increased to the pass mark (6). So, once again, there is doubt. Was the evaluation fair and transparent? Ideally, evaluations should be objective, coherent, verifiable, and without ambiguity.

[66]  The complainant also referred me to Chiasson v. Deputy Minister of Canadian Heritage, 2008 PSST 27 at para. 39, in support of his argument that bad faith can also be established by circumstantial evidence. It reads as follows:

[39] The Tribunal further set out in Cameron and Maheux v. Deputy Head of Service Canada et al., [2008] PSST 0016, that bad faith can be established both by circumstantial evidence and by direct evidence of intent to harm. On this issue, the Tribunal referred to the Supreme Court of Canada decision in Entreprises Sibeca Inc. v. Frelighsburg (Municipality), [2004] 3 S.C.R. 304; [2004] S.C.J. No. 57 (QL):

[26] Based on this interpretation, the concept of bad faith can encompass not only acts committed deliberately with intent to harm, which corresponds to the classical concept of bad faith, but also acts that are so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that they were performed in good faith. What appears to be an extension of bad faith is, in a way, no more than the admission in evidence of facts that amount to circumstantial evidence of bad faith where a victim is unable to present direct evidence of it.

[67]  He also pointed out that, referring to Chiasson, at para. 48, all candidates must be assessed using the same standards. That paragraph reads in part as follows:

[48] … The Tribunal deems that all candidates must be assessed on the basis of the same standards. This means that the same rules of the game must be applied uniformly for all candidates. The evidence shows that the complainant was not subjected to the same standards as the other candidates, as she did not receive the change made to the instructions for the written exam. This is not just an inconsequential error.

[68]  According to the complainant, in summary, his manager did not assess the candidacies in good faith, with an open mind, and with the intent of finding the best person for the position. His was of the opinion that as in Burke v. Deputy Minister of Department of National Defence, 2009 PSST 3, the Board should find that because the respondent did not establish that the person appointed was qualified for the position to which she was appointed, the Board should order the deputy head to revoke the appointment.

[69]  The respondent argued that in staffing matters, the burden of proof is on the person alleging an abuse of authority. Complainants must meet that burden if they wish to convince the Board to allow their complaints. As noted in Jolin v. Deputy Head of Service Canada, 2007 PSST 11 at para. 43, “It is not sufficient to file allegations and to argue that the respondent abused his authority in applying the merit principle. The complainant must produce convincing evidence of the abuse of authority that she is alleging.”

[70]  It noted that under s. 36 of the PSEA, deputy heads have broad discretion as to evaluation methods used to determine if a person meets the required qualifications. It referred to Visca v. Deputy Minister of Justice, 2007 PSST 24, in support of its position.

[71]  It also argued that in Jolin, at para. 77, the PSST mentioned that for it to find that an abuse of authority occurred in the choice of assessment methods, the complainant must prove “… that the result is unfair and that the assessment methods are unreasonable, do not allow the qualifications stipulated in the statement of merit criteria to be assessed, have no connection to those criteria, or are discriminatory.”

[72]  The respondent denied that any abuse of authority occurred. It argued that the written exam was fair and that the evaluation method used was reasonable. The written exam was based on an established statement of merit criteria. The marking guide was developed in advance with expected behaviours based on the competencies assessed and was applied uniformly to all candidates. Additionally, the marking key for the exam was a reliable tool for evaluating candidates, and the evaluation and appointment decisions were fair. It submitted that the essential criteria for the position, the evaluation tools, and the marking scale were clearly established in advance and applied consistently.

[73]  According to the respondent, in summary, the evaluation method was valid and was applied fairly to all candidates. It added that no evidence suggests that the marking system was defective, that it was too strict, or that it had been developed to put candidates at a disadvantage. It insisted that a single marking guide was used and applied uniformly to all participants.

[74]  For the following reasons, I find that the complainant has demonstrated that the marking method chosen by the respondent was not entirely transparent. To determine whether the error is serious enough to constitute an abuse of authority, I will consider all the respondent’s actions during this staffing process, to see whether, collectively, they constitute a wrongdoing or a major fault that constitutes an abuse of authority.

[75]  Under s. 36 of the PSEA, deputy heads have broad discretion as to the evaluation methods used to determine whether a person meets required qualifications. Section 36 reads as follows:

36 In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i).

[76]  In Visca, the PSST stated the following about s. 36 of the PSEA:

…

As highlighted by the words “may use any assessment method”, section 36 of the PSEA is non-prescriptive; a selection board may choose from a wide range of assessment tools and methods….

…

[Emphasis in the original]

[77]  Therefore, the respondent has the discretion to choose a method for evaluating candidates, and this method must allow it to make a merit-based appointment under s. 30(2) of the PSEA.

[78]  In this case, Ms. Messier explained that she prepared the exam’s questions and its answer key. Then, in exercising her discretion, she assessed the correctness, accuracy, and completeness of the candidates’ answers without specific components of the answers being established in advance.

[79]  Nevertheless, by failing to develop a marking grid upfront containing the components of the required answers and relying solely on general behaviours reflecting the competencies being assessed, there is no precise way of knowing whether the candidates’ answers had merit. Instead, Ms. Messier subjectively assessed the merits of the candidates’ answers. Additionally, no one else was involved in marking the exams.

[80]  Specifically, at the hearing, Ms. Messier had trouble indicating the precise answers she had sought for each question. In the marking key, as seen, the answers were not specified.

[81]  Clearly, this marking method does not allow an observer other than the marker to precisely distinguish components of answers that have merit compared to others. Indeed, Ms. Messier explained that she had determined the best answers to the questions while correcting the exams. She then did her best to rebalance the marking, based on the calibre of the answers. No one else was involved in the marking. This is why I qualify the marking as subjective. In my view, such a method is not ideal given that it does not ensure an objective, fair, and transparent evaluation of the answers.

[82]  Without a marking grid that includes the desired answers, apart from a list of general behaviours based on competencies, nothing is clear. Ideally, there should be a means of ensuring that the candidates’ answers are consistent with or diverge from the desired answers. In my view, an objective and transparent evaluation of the answers presupposes that the components of the answers sought were established in advance and that the marker notes those components consistent with or deviating from the desired components. However, in this case, there was no means of ensuring that the complainant’s answers were evaluated objectively and fairly.

[83]  I note that a marking grid can still remain open to all good answers in addition to those listed in advance. Nevertheless, it allows an observer to clearly distinguish from others the majority of the components of an answer that have merit.

[84]  In light of these facts, I find that the evaluation tool and marking method did not entirely ensure the transparency and fairness that are needed in internal appointment processes. However, to determine if the error was serious enough to constitute an abuse of authority, I will consider my finding on the next issue.

B. Issue 2: Was the respondent biased toward the complainant in the appointment process?

[85]  In Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10 at paras. 60 to 74, the PSST found that bias, including a reasonable apprehension of it, can constitute an abuse of authority in evaluation and appointment decisions under the PSEA. The PSST adopted the objective criteria of a reasonable apprehension of bias that the Supreme Court of Canada described in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (CSC) at 394.

[86]  In Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General, 2015 SCC 25 at para. 37, the Supreme Court of Canada set out the criteria, as follows:

… whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias … [T]he assessment is difficult and requires a careful and thorough examination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties….

[87]  Applying the criteria to this case means determining whether an informed observer could reasonably perceive bias in one or more evaluation committee members, which in this case consisted solely of Ms. Messier.

[88]  The complainant’s argument that there was bias or a reasonable apprehension of it against him was based on the fact that certain actions, comments, or events observed before, during, and after the appointment process raised a reasonable apprehension of bias.

[89]  He explained that in 2013, when he arrived on the Controlled Substances team, it consisted of three SG-SRE-05 specialists. Two of his teammates were in indeterminate positions; he held a position on an acting basis. Over the years, many people were added to the team, and he helped train new team members, which Ms. Brown confirmed.

[90]  He added that he contributed significantly to the program objectives, that he really enjoyed his work, and that he had told his manager of his desire to be appointed to the team indeterminately.

[91]  He explained that in 2014, he got along very well with Ms. Messier. However, due to an unfortunate incident that occurred in January 2015, her behaviour toward him completely changed. He explained that on Friday, January 23, 2015, while he was at the office, he received an emergency call from his spouse. She was at home with their two children, and she told him her back had gone out, that she was suffering terribly, and that she could not move. The question of a partial paralysis arose at the hearing. He added that during the call, one of his children was in a crib and was crying. His spouse could not get to the child.

[92]  He then informed his manager, Ms. Messier. He advised her that he had to go home urgently to help his spouse and young children. He then took three days of leave for family reasons over the next week.

[93]  The complainant explained that he was to conduct two inspections in January 2015, one in Granby, which he conducted during the week of January 12, and the other in Moncton, during the week of January 26. The second inspection, of a business in the medical marijuana industry, was important and demonstrated HC’s significant commitment to the regulation of that substance.

[94]  However, he was unable to conduct the inspection in Moncton due to his family situation. He explained that when he returned to the office on January 29, Ms. Messier was in a bad mood. At her request, they went to a small meeting room, where, with indignation, she told him of the problems caused by his inability to conduct the scheduled inspection in Moncton. She told him that such a situation could not happen again. According to him, she gave him the following warning:

[Translation]

I don’t know if you know what a mess you put us in … [f]or this position … the employee has to be ready to travel, as the position requires travelling to the Atlantic region. If an employee has a disabled spouse, which prevents the employee from meeting the requirements of the position, then the employee may have to change positions.

[95]  He said that he was speechless. As he remembered it, he replied that she had no right to tell him that. Apparently, she replied that management in Ottawa had not appreciated at all learning that the Moncton inspection would likely not be conducted, given HC’s significant commitment in that area. Thus, she had to take heat from her superiors.

[96]  According to the complainant, Ms. Messier’s attitude toward him changed as of that moment. He said that the incident upset everything. After it, she was cold to him. In his annual performance assessment for the 2014-2015 year, completed in March 2015, she addressed his “[translation] failure” with respect to the inspection that he had been unable to conduct in January 2015. She referred to a problem about the matter. In section C of his assessment, under “[translation] Competencies (expected behaviour)”, she wrote the following under the heading “[translation] Working well with others”: “[translation] … He respects his commitments most of the time, except once, when he cancelled an essential MM [medical marijuana] inspection for family reasons.”

[97]  The complainant did not agree that it was a failure on his part. He replied that he had taken leave for family reasons because something serious had happened to his spouse. He requested paid leave for family related responsibilities under clause 17.12 of his collective agreement, i.e., the agreement between the Treasury Board and the Professional Institute of the Public Service of Canada (tab P-8) for the Applied Science and Patent Examination group, which expired on September 30, 2014. Ms. Messier approved his leave. So, he asked that she withdraw her negative comment from his evaluation. She refused.

[98]  And one year later, just before he was scheduled to leave on March 31, 2016, the complainant requested in writing that Ms. Messier reconsider her decision to not renew his appointment on an acting basis ending on that date. In his request, he wrote the following: “[translation] Once again, I would like to say that in my opinion, the fact that I had to miss work in January 2015 when my wife put her back out did not prevent me from doing very good work.” He reiterated that although Ms. Messier had “[translation] … explained that an employee who could not carry out work due to a disabled spouse would have to change positions”, the only inspection that he had been unable to conduct was the one in January 2015 and that he had conducted all his inspections since then. She responded as follows by email:

[Translation]

…

As for your performance, it was recognized in your performance evaluations.

Now, I never told you that you had to leave your position for the reasons mentioned. At the moment of the event, I explained to you the requirements of the position, which you clearly understood, and the problem did not reoccur.

…

[99]  Ms. Brown also testified that Ms. Messier’s behaviour toward the complainant changed radically after the January 2015 incident. Ms. Brown has worked at HC since 2002. Over the years, she has held such positions as inspector and regional compliance and law specialist, among others. She became a colleague of his in 2014, when she arrived on the controlled substances team. She and her colleagues considered him a reliable resource, as he was familiar with the different inspection fields. In particular, he provided her with special training on inspecting authorized medical marijuana producers.

[100]  Ms. Brown mentioned that she gets along well with Ms. Messier. She added that when she began on the team in 2014, the work environment was collegial and truly enjoyable, and it favoured cooperation and mutual support. However, she stated that the friendly environment at the office and Ms. Messier’s attitude toward employees changed in January 2015.

[101]  Ms. Brown stated that Ms. Messier had tried to find a replacement to conduct the Moncton inspection that the complainant was to conduct on Tuesday, January 27, 2015. However, the specialists could not cancel their prior commitments, and none was able to be free. Ms. Brown said that the drastic change in Ms. Messier’s attitude occurred at that moment.

[102]  Ms. Brown also added that she and her colleagues work in open-concept offices. Her and the complainant’s offices were diagonally opposite at that time. She stated that on January 29, when he returned to the office following his leave for family responsibilities, she heard Ms. Messier raise her voice at him. She was angry. Ms. Brown had never heard her use such a tone. Specifically, her tone was aggressive, and she told him that she had to speak with him in a room in private. Ms. Brown knew the subject of the dispute (his absence for family responsibilities). She added that he had been absent due to a legitimate emergency, as his spouse had been in distress, and that he had been entitled to leave for family responsibilities.

[103]  When the complainant returned to his office after his meeting with Ms. Messier, Ms. Brown saw that he looked in discomfort and that he was stunned. That event disturbed Ms. Brown to the point that she had to leave in the afternoon; she had been seriously shaken. After that, Ms. Brown found that Ms. Messier was impatient with him. He was no longer treated the same as he had been, every day. When problems came up, Ms. Messier often blamed him. According to Ms. Brown, it resembled a reprisal.

[104]  Ms. Brown also remembered her conversation with Ms. Messier in March 2015 about a trip that she had to take to Gatineau with the complainant. As they had planned a return trip on the same day, Ms. Messier told her that if his family situation hindered his work, it was up to him to change jobs.

[105]  Similarly, as part of her performance evaluation in March 2015 and during a meeting with Ms. Messier, she asked Ms. Brown if she found that the complainant’s family situation hindered his travel and whether Ms. Brown had been inconvenienced by it. Ms. Brown was surprised by the question and replied that he had never mentioned to her that he wanted to avoid travel. Nevertheless, Ms. Messier retorted that regardless, he could change jobs if he was inconvenienced by travel.

[106]  Then, in September 2015, the appointment process was launched for the team leader position in question. Ms. Brown, the complainant, and others applied. However, Ms. Brown withdrew her application after the exam, as she was already in an SG-SRE-05 position.

[107]  Ms. Brown also added that on her mid-year evaluation, in 2015-2016, she received an entirely positive evaluation from Ms. Messier. Then, according to Ms. Brown, Ms. Messier again talked about the complainant and his supposed limitations (absences for family responsibilities) that hindered his work. Ms. Messier reminded her that it was not up to the other specialists to make up for his limitations. Ms. Brown said that she did not understand Ms. Messier’s statement as he had missed only one inspection, in January 2015. It made Ms. Brown uncomfortable.

[108]  A short time later, the complainant’s position on an acting basis was not renewed, and he had to leave the team. Ms. Brown said that at his farewell dinner, the ambiance was sad. No one understood why the appointment on an acting basis was not renewed, given his role as a resource person on the team.

[109]  The complainant also added that after he began with the team, two other people in SG-SRE-04 positions, like him, joined the team in SG-SRE-05 positions on an acting basis. And just after the January 29 incident, Ms. Messier told him that she would promote those two people to indeterminate SG-SRE-05 positions. Then, in March 2016, she told him that she would not renew his SG-SRE-05 position on an acting basis. Thus, the complainant has no longer been a member of the controlled substances team since April 2016.

[110]  From 2016 to 2018, the complainant held his substantive position at the SG‑SRE-04 group and level.

[111]  According to him, Ms. Messier acted in bad faith and showed bias toward him in the appointment process. He maintained that the marking was not consistent across the candidates. He based it on the fact that she was the only exam marker and that no one reviewed her marking. According to him, she used the marking method’s subjectivity to correct his exam unfavourably, to eliminate his candidacy.

[112]  For her part, Ms. Messier explained that she supervised the Controlled Substances Programme regional specialists team in the Eastern Region. Despite her January 2015 incident with the complainant, on April 1, 2015, she offered him an extension of his position on an acting basis as a regional specialist for April 1, 2015, to March 31, 2016, to meet HC’s operational needs. She stated that she had a good working relationship with him. She added that naturally, she addressed issues and work-related questions firmly but fairly, in accordance with her team’s commitments. For the occasional gaps, she carried out her role of ensuring that the team’s commitments and objectives were respected.

[113]  Ms. Messier commented on her January 2015 event with the complainant. First, she explained that the subject of authorized medical marijuana production received significant media coverage at that time. She noted the importance that senior management placed on inspections in that area, to ensure the safety of vulnerable people. She then explained that he had already asked to postpone the inspection of the authorized marijuana producer in the Atlantic region scheduled for January 12, 2015, due to a family obligation. The inspection had been postponed to January 27 at his request. However, it had to be done, and shortly before it was to take place, he again asked to be excused due to family responsibilities. But the inspection absolutely had to be conducted before the end of the month, i.e., January 31. So, postponing it was impossible. Additionally, no other specialist was available.

[114]  Thus, Ms. Messier was obligated to inform a director in Ottawa that her team was unable to conduct the inspection. The director, aware of the issues for HC, advised her that she would need to explain it to the deputy minister. The entire situation negatively impacted the team. In the end, she had to conduct it.

[115]  When the complainant returned to the office, Ms. Messier explained to him the consequences of his absence for her and the team. She reminded him that the requirement to travel was a condition of his employment. She also added that in the past, she had agreed to change certain travel arrangements to accommodate him. Thus, when his appointment on an acting basis was extended on April 1, 2015, she ensured that he agreed to travel. He agreed to that employment condition, and the problem never arose again.

[116]  Ms. Messier specified that after that, in September 2015, the team leader position was announced, and the complainant applied. He wrote the written exam. On November 26, 2015, he was informed that he had not obtained a pass mark for two merit criteria, which was why his candidacy was eliminated from the appointment process.

[117]  Ms. Messier also specified that she did not remember at that time discussing with Ms. Brown the complainant and his alleged hesitation to travel.

[118]  At the hearing, the complainant argued that as in Denny v. Deputy Minister of National Defence, 2009 PSST 29, he and Ms. Messier were in a conflict before the appointment process. He argued that because of it, whether deliberately or not, she was unable to mark his exam fairly. He referred me as follows to paragraph 133 of that decision:

[133] The Tribunal finds that an informed person viewing the evidence realistically and practically would think that it is more likely than not that Mr. Varner, whether consciously or unconsciously, would not administer the practical test fairly vis-à-vis the complainant. Accordingly, the Tribunal finds that there is an appearance of bias in this appointment process as a result of Mr. Varner’s involvement, and the duty to conduct a fair appointment process has not been fulfilled.

[119]  The respondent denied showing bias in the appointment process.

[120]  The respondent reiterated that the moment Ms. Messier began in her manager position in April 2014, the complainant had held a position on an acting basis as a regional compliance and law specialist since April 1, 2013. His appointment was extended several times until March 31, 2016, to address extended absences on the team.

[121]  The respondent added that in March 2016, a specialist position (SG-SRE-05) had to be filled. The respondent had a valid candidate pool until March 31, 2016, to fill it from. One of the complainant’s colleagues was appointed to the position. Therefore, the complainant’s appointment on an acting basis was not renewed.

[122]  In addition, the team leader position referred to in the complaint was occupied on an acting basis until it was filled. The position was offered on a rotating basis to five members of the Controlled Substances Programme team for a limited time. Four members who took part in the appointment process, including the complainant, had occupied the position on an acting basis for about two months each. He held the position on an acting basis in summer 2015.

[123]  According to the respondent, the complainant’s candidacy was not retained because he did not demonstrate that he had the essential qualifications for the position.

[124]  The respondent argued that what must be decided is the significance of the comments by the complainant and Ms. Brown and whether there is any link between those comments and the appointment process. The January 2015 incident led them to believe that Ms. Messier had shown bias toward him, but no recent facts allow establishing a link between that and the appointment process. According to the respondent, the incident is not sufficient evidence for the Board to find that there was bias in the appointment process. It referred me to Praught v. President of the Canada Border Services Agency, 2009 PSST 1 at para. 66, which reads as follows:

[66] The Tribunal finds that, while Mr. Williams has no memory of them, these incidents likely occurred in 2004 and 2005. What is in dispute is the significance of the comments made and whether there is any link between them and the current appointment process. These incidents have led the complainants to perceive that Mr. Williams was biased against them. However, these events occurred several years ago and there have been no recent situations that would link these incidents to this appointment process. The events by themselves are not sufficient evidence for the Tribunal to find that there has been bias in this appointment process. Similarly, the fact that Ms. Gilker gave Ms. Praught a negative assessment in 2004/05 is not sufficient for the Tribunal to conclude that Ms. Gilker was biased against Ms. Praught in this appointment process.

[125]  The respondent added that the January 2015 incident was isolated, that it occurred about one year before the exam was marked, and that there is no evidence that the complainant was treated differently than the others were, as a result. It referred me to Jayawardena v. Chief Statistician of Canada of Statistics Canada, 2012 PSST 2 at paras. 51 and 52, which read as follows:

51  An informed person reviewing the facts would conclude that these prior events do not give rise to a reasonable apprehension of bias. As director of CSSD, to which Ms. Boulin belonged as an employee of MACS, Mr. Gour brought certain matters to her attention, informed her manager, Ms. Hamilton, and advised the latter that he considered the matter closed. The events were isolated and occurred approximately one year before Ms. Boulin’s interview. There is no evidence that Ms. Boulin was treated any differently as a result (see the similar finding in Praught and Pellicore v. President of the Canada Border Services Agency, 2009 PSST 0001 at para. 66).

52  This situation differs from that in Denny, where a reasonable apprehension of bias was established. In that case, the complainant and the assessment board member were in clear situations of conflict prior to the assessment process. The complainant had played a role in removing the board member in question from a local committee. The complainant had filed grievances and a harassment complaint against the board member and they had not been on speaking terms since.

[126]  The respondent argued that Denny, at paras. 124 and 126, states, “The test for reasonable apprehension of bias is well established. Suspicions, speculations or possibilities of bias are not enough and bias must be real, probable or reasonably obvious.” According to the respondent, the complainant did not present any evidence or arguments to support his allegation.

[127]  The respondent emphasized that the complainant did not qualify in the appointment process because he did not adequately answer the exam questions and demonstrate that he satisfied all the merit criteria. The fact that the person appointed was successful, on its own, does not show bias.

[128]  Finally, the respondent argued that Ms. Messier was open to the possibility that there could have been several correct answers to the exam questions. Additionally, as indicated in Denis v. President of the Canada Border Services Agency, 2011 PSST 4 at para. 22, “It would be unreasonable to require an examination answer key to foresee all possible answers, especially unexpected ones.”

[129]  For the following reasons, I find that the complainant demonstrated that he and Ms. Messier had a significant disagreement in January 2015 and that trouble continued between them before the appointment process.

[130]  The jurisprudence is consistent that members of assessment boards evaluating candidates in an appointment process have a duty to conduct their assessments fairly and in a manner that does not give rise to a reasonable apprehension of bias. If a reasonably informed observer could reasonably perceive bias on the part of one or more assessment board members, then the duty to act fairly has not been met. See Pellicore v. President of the Canada Border Services Agency, 2010 PSST 23 at para. 46.

[131]  In this case, both the complainant and Ms. Brown stated that Ms. Messier’s attitude toward him changed after January 2015. She was then impatient with him, and he was no longer treated the same way every day. Ms. Brown stated, “[translation] It resembled a reprisal.”

[132]  Yet another difficulty in this case is that the evaluation tool and the marking method did not entirely ensure the transparency and fairness sought in appointment processes. Thus, there is no way to ensure that the complainant’s answers were evaluated objectively and fairly. The exam that he failed was not objective in that the marker had too much flexibility.

[133]  Thus, in my view, due to Ms. Messier’s differential treatment of the complainant, it is more likely than not that the evaluation of his qualifications was biased. In other words, a relatively well-informed observer studying the issue in depth, realistically, and practically would find that Ms. Messier incorrectly assessed him because they had an ongoing disagreement.

[134]  Specifically, she made a personal and subjective assessment of what he should have done better or differently. However, without a marking grid containing the components of the desired answers, apart from a list of generally desirable behaviours based on the competencies to be demonstrated (which does not really help), it is impossible to know if the evaluation was done fairly.

[135]  The combination of those two things (differential treatment and the lack of predetermined answers) leads me to find that there is an appearance of bias in this appointment process.

[136]  When a reasonable apprehension of bias has been established, the Board can find that an abuse of authority occurred.

[137]  Thus, I find that it has been demonstrated that the respondent abused its authority by not being impartial toward the complainant in the appointment process.

V. Corrective measures

[138]  Sections 81 and 82 of the PSEA read as follows:

81(1) If the Board finds a complaint under section 77 to be substantiated, the Board may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Board considers appropriate.

(2) Corrective action taken under subsection (1) may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.

82 The Board may not order the Commission to make an appointment or to conduct a new appointment process.

[139]  In its written arguments, the PSC stated, “[translation] Under section 81(1), when an appointment is illegitimate by reason of an abuse of authority, one possible solution is to revoke the appointment or order that it not be made.” It added, “[translation] Other measures can be indicated to ensure that in the appointment process in question, the consequences of an abuse of authority or failure to comply with section 37(1) are offset.”

[140]  In this case, the evidence supports concluding that there is a reasonable apprehension of bias in the complainant’s evaluation. As indicated, he demonstrated that he had a dispute with Ms. Messier from his failure to conduct an inspection in the past. The evidence supports the conclusion that she held that against him and that she blamed him for it several times. As there is no objective way to determine whether the marking of his exam was fair, I find that a reasonable apprehension of bias has been established.

[141]  However, there is no evidence that the person appointed did not satisfy the merit criteria. The Board’s role is not to reassess a candidate’s mark on a given answer simply because he or she disagrees with it; see Portree v. Deputy Head of Service Canada, 2006 PSST 14 at para. 52. So, the Board will not intervene unless there is a serious error, omission, or improper conduct in how a candidate’s answers were assessed. Moreover, I do not find that the appointed person’s answers were incorrectly assessed due to an abuse of authority. Instead, I find that there is a reasonable apprehension of bias in the complainant’s assessment.

[142]  For these reasons, I find that it would not be appropriate to revoke the appointment in this case. I have also considered that if an appointment is revoked, the impact on that person is significant, as it results in the loss of a position. The person appointed in this case has held the position since March 9, 2016, i.e., for more than three years. As I have no reason to believe that that person’s appointment was the result of an abuse of authority and as I have no evidence to indicate that that person is not qualified, I find that it would not be appropriate to revoke the appointment.

[143]  Instead, I find that in the circumstances of this complaint, a declaration is sufficient that Ms. Messier abused the discretion delegated to her because there is a reasonable apprehension of bias in the complainant’s assessment. In my view, a declaration combined with an order that the respondent reassess his candidacy is an appropriate corrective measure that offsets the consequences of the abuse of authority.

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

(The Order appears on the next page)

VI. Order

[145]  I allow the complaint.

[146]  I declare that Ms. Messier abused the discretion delegated to her because there is a reasonable apprehension of bias in her assessment of the complainant.

[147]  I order that the respondent reassess the following essential qualifications for the complainant, based on objective components of the answer: (1) Thinking and Acting, and (2) Service Orientation, within 60 days of this decision. If, in light of that reassessment, he is deemed qualified, I order that the respondent offer him the opportunity to move to the interview stage of the appointment process and to complete the assessment. If he is deemed qualified, he shall be eligible for an appointment to a position until the pool of qualified candidates from that process expires or, if the pool has already expired, until two years have passed from the date of this decision, whichever is longer.

[148]  I also order that someone other than Ms. Messier assess the complainant.

August 29, 2019.

FPSLREB Translation

Nathalie Daigle,

a panel of the Federal Public Sector

Labour Relations and Employment Board