Date: 20210414

File: EMP-2017-11342

 

Citation: 2021 FPSLREB 40

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

 

SERGE LARAMÉE

Complainant

 

and

 

DEPUTY HEAD

(Royal Canadian Mounted Police)

 

Respondent

Indexed as

Laramée v. Deputy Head (Royal Canadian Mounted Police)

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

Before: Bryan R. Gray, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Frank Janz, representative

For the Respondent: Elizabeth Matheson, counsel

Heard via videoconference,

November 12 and 13, 2020.

REASONS FOR DECISION

I. Summary

[1] Serge Laramée (“the complainant”) sought a promotion to a fleet operations manager position (AS-03) with the Royal Canadian Mounted Police (RCMP) in Ottawa, Ontario. He was placed in a pool of qualified candidates but was not selected for the appointment.

[2] The complainant alleges that the manager was biased against him and saw him as a black sheep and whistle-blower due to the complainant reporting the manager for compromising the written assessment in the appointment process at issue.

[3] Specifically, the written allegation filed with Federal Public Sector Labour Relations and Employment Board (“the Board”) on October 6, 2017, states, “The complainant alleges the respondent abused its authority by failing to provide a fair, objective and unbiased staffing process.”

[4] The respondent annulled the assessment exercise due to the manager’s poor conduct and launched a new assessment. The manager was not a member of the selection board, but the complainant adduced evidence and argued that it suggested the manager might have continued to try to influence the ongoing process and that his efforts might have been directed to benefit one candidate or to disadvantage the complainant.

[5] I find that the evidence before the hearing is not sufficiently clear for me to conclude on a balance of probabilities that a well-informed person viewing this matter realistically and practically and having thought the matter through would be left with a reasonable apprehension of bias on the part of the respondent.

[6] Given this conclusion I dismiss the complaint.

II. Evidence

A. Background

[7] The complainant made this complaint under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the Act”). He alleged that the respondent, the RCMP’s deputy head, abused its authority in the application of merit in the advertised appointment process at issue.

[8] In case-management conference discussions with both parties well in advance of the hearing, I informed them of my opinion that the hearing could proceed via videoconference more efficiently if written statements of fact were prepared in advance, adopted as testimony by the respective witnesses, and then cross-examined with viva voce testimony.

[9] The employer prepared the following statement of facts, which was accepted as an exhibit at the hearing on the complainant’s consent:

1. The complainant, Serge Laramée, was employed with the Royal Canadian Mounted Police as a CR-05 Transport Attendant beginning in 2015.

2. On December 13, 2016, an advertised appointment process (16-RCM-IA-N-N-NCR-CMC-63313) was posted to staff an indeterminate AS-03 Fleet Operations Manager position, in Ottawa. The job advertisement closed on January 13, 2017.

3. Benoit Ouellette, who was the Fleet Manager in 2017, created the statement of merit criteria for the AS-03 Fleet Operations Manager position.

4. Mr. Ouellette and Julie Furlotte created the rating guide to assess candidates for the February 2017 interviews.

5. The complainant applied for the process.

6. The complainant’s interview took place on February 15, 2017; the results of the complainant’s first assessment were finalized on February 16, 2017.

7. On February 28, 2017, the complainant received an email stating that the previous results the candidates received in the process were no longer valid. This email noted that “the assessment material has been compromised.” It stated that the screened-in candidates would be re-assessed once new assessment material had been finalized.

8. Ms. Furlotte and Nathalie Guilbault created the rating guide for the July 2017 interviews.

9. The results of the complainant’s second assessment were finalized on July 10, 2017.

10. For both the first and second assessments, the board was comprised of Nathalie Guilbault, Darren Mierau, and Julie Furlotte; they conducted both of the complainant’s interviews and both of his assessments.

11. The complainant was informed he was placed into the pool on July 20, 2017, but he was not selected for this appointment.

12. A Notification of Appointment or Proposal of Appointment was posted on August 1, 2017, for the AS-03 position. The proposed appointee was Richard Jr. Leduc.

13. The complainant filed his complaint with the Federal Public Sector Labour Relations and Employment Board on August 8, 2017.

B. The complainant’s statement

[10] The complainant prepared the following written statement. It was provided to the employer’s counsel. The complainant adopted the full text as his affirmed testimony upon the commencement of his examination-in-chief. This text was accepted as an exhibit:

Description of the events: From December 23, 2016 up to July 20, 2017

Aug 08, 2017

Hello,

I’ve been an employee of the RCMP for the past 25 years. In my 25 years of employment I have not applied on many competition, therefore I’m fairly new at this and don’t understand the complete staffing process.

Therefore, here a brief statement of event that started Dec 23, 2016 and up to July 20^th, 2017

I’ve started employment with Transport (Benoit Ouellette) in Sept 2015, it was an assignment of duty to accommodate between the CIO organization who was paying my salary for the first 6 months and CMC.

In December of 2016 a vacant position was up for grab in the section, Fleet Operations Manager. Since I was fairly new in the section I did not think much of it, but on a couple of occasion Benoit Ouellette was insisting that I should apply, which I did. He was also making everybody knows, almost convincing himself that he was not part of the process and that because he wanted to make it fair and transparent.

Dec 23, 2016 - On December 23, 2016 I stopped by Ben Ouellette’s office at approximately 13h30.The purpose of the meeting was to ensure that I met the criteria of the job posting for the AS 03 position. I felt comfortable with this since that he was making everybody aware that he was not part of the selection process for fairness and transparent reason. He asked if I knew the 4 stages of the life cycle of material, I indicated that I was not sure, he then asked me to enter his office, he informed me of the 4 stages which are Planning, Acquisition, Operation & Maintenance and Disposal/Replacement. I reply that I had the first 3 phases for sure but need to confirm with my previous supervisor if I have the 4^th stage. My previous supervisor confirms that I did have this stage regarding the disposal of computer equipment. At that point he offers to review my cv before I send it to staffing in with my application for the job to ensure that I have covered all the points. At that point I was wondering about this, especially that he was not part of the process. (Attach Jan 7 email to Jan 8 email Benoit response)

January 18, 2017 - While preparing and studying for upcoming competition and getting info from VIP personnel, I decided to send an email to Benoit Ouellette on January 18, 2017, it a fast fact (see email) and I want confirmation that these are correct concerning motorcade, is response “it looks good” and ask me to come by his office after 15h00. Which I did, therefore I want to clarify other things and take the opportunity to more detailed information related to Level of Security. He started with “we might be also asking to give example of motorcade composition”! Then I showed him the sheet on Level of Security I had, he says don’t worry about that one it is not on the test and point out with his finger to another page which is “Category of Event “That one will be in it! At that time I started to feel not comfortable, surprised, not sure what going on. I also want to mention that at least on 3 to 4 occasions he would add “don’t say anything to nobody” I started to talk about this with a co-worker, (he will attest to that if he need to).

Feb 15, 2017 - Benoit showed up at the counter, not sure how the conversation started but he asked me if I was ready, I reply yes and that I been studying for almost 6 weeks, just out of the blue a question popped up wanting a response and says “is there police equipment in a admin vehicle” at this point not sure where he’s going, I reply yes, he say no, then I defend my answer stating in example a request to install a fireball and board radio during major event, he says that does not count, then I reply with the vehicles at Leomont that are driven by Public Servant with, he replies that the fuse must be off, at that moment a co-worker came in and made me very not comfortable which made him leave. Then the fuse got me thinking, I knew all police equipment where functional, wanted to confirm with a co-worker at Leomont which he did, fuse not off. Therefore this situation in my mind was inappropriate behaviour, especially that I was leaving shortly to do my test, I felt I was being tricked and actually I was not really not sure what was going on! The funny part is that the first question to the test, there was 2 parts to that question but it did relate to the conversation.

Then on Feb 16, 2017 I received a notice that they were not considering my candidature anymore! That were I ask to meet Benoit Ouellette for an explanation, I had prepare some question, I felt I had been played with. All is response were evasive.

Then I requested a query from staffing concerning policies, but it seem at one point staffing was getting one of the board member involve, Nathalie Guilbault, insisting for informal discussions ,that were we had a phone conversation where I confirm all of the issues that had arisen with Benoit Ouellette, she insisted that I put that in writing, which I did. This being said then on March 09, 2017 I received an email from Benoit Ouellette responding to our meeting of Feb 20, 2017, the sad part he was getting coach by Nathalie Guilbault, I knew this because Benoit Ouellette forgot to delete the part where she’s coaching him on the word document and Nathalie Guibault attest it was her once I had demand if it was her, it was easy to figure this out, therefore this was a slap in the face, for me it was a breach of trust.

Then on Feb 28 staffing decided to put like a stop to the competition for assessment that material had been compromised. From there for me everything would go down the hill, I was the whistleblower, they decided not to renew my assignment as previously verbally agreed with Benoit Ouellette before all this had started and terminated my assignment in Transport.

All these event has been confirm and validated by l/C Johanne Hendrick, which in turn that they decided that the process would not be cancelled in its entirety but rather new assessment material would be developed and that Mr. Ouellette is not a member of the selection board, I did not agreed with this because of the relationship Benoit Ouellette and Nathalie Guilbault has together, also this being said I also have 2 emails where the new successful candidate confirm that on April 19, 2017 Benoit Ouellette and board member are discussing on how to handle the competition this time around. Also the new successful candidate prior to the selection has been having meeting with a board meeting and sending letter of appreciation from client, also new successful candidate recorded secretly with his personal phone conversation he had with the hiring manager to try and trick him which in turn made me listen.

I have all the email that pertain to this complaint including new material where you can see Benoit Ouellette still implicated even after it is attest by Joanne Hendrick he will not have an influence, it also easy to believe that at least another board member has always been involve since the start with this situation.

[Sic throughout]

C. The complainant’s exhibits

[11] The complainant testified that at one point, his work colleague, Mr. Leduc, was at his desk and that through the thin office walls, Mr. Leduc could hear one side (Mr. Ouellette’s voice) of a telephone conversation taking place in the adjacent office. The complainant explained that the email detailed in the next paragraph was sent to him just minutes after the phone call concluded.

[12] Mr. Leduc emailed this to the complainant on April 19, 2017, at 10:22 a.m. (Exhibit BA-1):

[Translation]

Thank you for the information, Serge. It’s still troubling that on Wednesday, April 19, at 09:55, Mr. Benoit Ouellette had a telephone conversation (he spoke loudly, so it was easy to hear everything, even if that was not desired). During the conversation, Benoit was heard very clearly saying that we just need to reopen the AS-03 competition for all of Ottawa and put less knowledge for visits and more for management. Benoit said that I would ‘train’ him or her; that’s all. However, the exam is supposed to be only on the 24^th, and according to Ms. Hendrick, Benoit is not supposed to be involved. Furthermore, how does he know that they will have to reopen the competition and put less visit experience, without even knowing who may win on the 24^th, Maybe someone having significant experience with visits will win?

[Sic throughout]

[13] On June 22, 2017, at 2:48 p.m., Mr. Leduc emailed this to Ms. Guilbault (Exhibit BA-2):

[Translation]

First, I believe it is important to make you aware of a discussion I had with Benoit Ouellette early in the afternoon of June 22, 2017. We were very busy, as we were managing several events.

When Benoit passed near my office, he asked me how things were going. I told him that at that time, everything was going well. Given that Benoit offered to work on Canada Day if we were short-staffed, I told him that for the moment, everything seemed under control in terms of resources. I then stated that for the ITALY visit Monday, the requests were one guy from ‘Fleet’ with me at CRC and two guys from ‘Fleet’ here at TPOF and that it was [P’s] turn to come to CRC. I then mentioned that for the ROYAL visit, the request was the same, one guy from ‘Fleet’ at CRC. Thursday, I told him that it was [DC]’s turn. Benoit then immediately replied, “[translation] I do not agree. [DJ] should have the opportunity to go there. He needs experience with visits, and he ([DJ]) should go. He is in the AS-03 competition, and he should go to CRC.”

This is where I see it as a problem. I explained to Benoit that I am a loyal guy and that I would not favour a candidate when it was the turn of two employees who had worked very hard at several events, and they never had the opportunity to gain CRC experience. Second, I believed that Benoit could not be involved in the AS-03 process, as Ms. Hendrick had indicated to us. Therefore, I did not explain well that he suggested to me giving that experience to one of the candidates in the competition. Third, I believed that you already had to have this acquired experience to participate in the AS-03 competition, so I found it surprising that Benoit would suggest to me that [DJ] should go to CRC to gain experience. In addition, I was 100% involved in two visits from the start, while Benoit was not involved but at that point tried to impose selecting one employee over another from the fleet.

Finally, I told Benoit Ouellette that I was awaiting confirmation to return a third time to CRC on Friday for the second arrival of the Prince from Trenton and that [DJ] was next were it confirmed. Benoit repeated himself by stating that [DJ] should go to CRC. I told him that as an honest person, I had difficulty seeing how I would have favoured one employee over two other employees.

I believe that currently, I am doing excellent work in this unusually busy time, and I have several emails that show the amount, quality, and appreciation of this work if ever you would like to receive them. In addition, I believe that I treat the employees very honestly and equally, and I have attached evidence that I gave opportunities to two Leomont employees ([DJ] and [SR]) to gain experience at these events. I did not choose myself without giving a chance to one of two employees.

Thank you for your very valuable time, and as mentioned before, I have no problem with undergoing a polygraph if you wish to validate my statements.

P.S.: Mr. Benoit Ouellette was BCC’d on this email, and I told him in advance that I would write you this email to notify you of the discussion we had.

Thank you and good day.

[Sic throughout]

[14] Both emails were translated from their original French. Both parties reviewed the English translations and concurred with their accuracy.

[15] Counsel for the employer objected to the June 22 email being accepted as an exhibit on the grounds that it contained a new allegation, namely, tampering with the selection board.

[16] I disagree. As noted earlier, the complainant’s written allegations that were added to the file in October 2017 allege a failure to provide a fair, objective, and unbiased staffing process.

[17] I find that the allegation of Mr. Ouellette’s ongoing interest in and actions related to the appointment process are encompassed within the written allegations of bias that I have cited.

[18] Counsel also noted the fact the documents were hearsay to the hearing and that I should place little if any weight upon the statements contained within them.

III. Testimony

[19] Each party presented one witness at the hearing.

A. The complainant

[20] In addition to the earlier written statement, the complainant testified to the following matters:

- He felt that the appointment process for the AS-03 position was dishonest.

- Through discussions with his colleagues, he concluded that DJ must have been the successful candidate in the aborted first process.

- After the first evaluation went awry, he spoke to Mr. Ouellette. He felt that he received dishonest answers from Mr. Ouellette about the evaluation and the information that Mr. Ouellette had provided him about preparing for the evaluation questions.

- When he reported Mr. Ouellette’s suspicious actions to Ms. Guilbault, she was to hold their discussion in confidence. But he found out quickly that she had passed what he had told her on to Mr. Ouellette.

- Mr. Ouellette then emailed a document to the candidates about the process and evaluation. It contained side notes authored by Ms. Guilbault that showed that she was cooperating with and supporting Mr. Ouellette’s efforts.

- He saw Ms. Guilbault’s efforts with Mr. Ouellette as a betrayal as he thought that he had spoken to her in confidence about his concerns with the process.

- Mr. Ouellette treated him as a black sheep after he spoke to Ms. Guilbault.

- Shortly after the interactions, Mr. Ouellette told him that his assignment would not be extended, even though he had already been informed that it would be extended.

- His assignment agreement was terminated.

B. Ms. Guilbault

[21] Ms. Guilbault testified as follows:

- Mr. Ouellette was the direct supervisor of the position available in the appointment process at issue.

- Mr. Ouellette wrote the Statement of Merit Criteria (SOMC) and the essential qualifications. He also had input into the rating guide as he was the subject matter expert.

- Mr. Ouellette had input to the selection board members for the interview questions related to the initial assessment.

- After the first assessment process was completed, all the unsuccessful candidates were informed of the outcome, but the successful candidate was not informed.

- Upon learning of the complainant’s concerns, she held an informal discussion with him for the details of his claim that Mr. Ouellette had compromised the evaluation process.

- She took the information from the complainant. After discussions were held with other people, it was decided that the evaluation would be redone but that the existing appointment process was fine.

- In her discussion of the matter with Mr. Ouellette, she stated that he admitted to helping the complainant during the initial assessment as Mr. Ouellette had said that he wanted as many successful candidates as possible for the position.

- She told Mr. Ouellette to stop giving candidates information about the evaluation questions.

- She testified that Mr. Ouellette did not have input into the second evaluation or selection of the candidate that was offered the appointment arising from the second process.

- Specific to the help that Mr. Ouellette had provided, she testified that he gave information to the complainant about the evaluation questions on motorcades and on the life cycle of assets.

- In the first assessment of the complainant, the first knowledge factor assessed (“K1”) dealt with carpool policies and procedures.

- Despite being prompted, the complainant received a mark of 0 out of 5 on the first of two K1 questions, which dealt with purchasing carpool vehicles.

- He received a mark of 4 out of 5 on the second K1 question, dealing with equipping administrative vehicles with emergency equipment.

- The third factor (“K3”) assessed was about motorcade compositions. The complainant received a mark of 5 out of 5 on it. The 2 questions for this factor were to describe designations given to motorcade vehicles and to provide 3 examples of motorcade compositions.

- “K4” dealt with the life cycle of materials management.

IV. Analysis

A. Jurisprudence

[22] Sections 77(1)(a) and 2(a) of the Act provide that an unsuccessful candidate in the area of selection for an advertised internal appointment process may make a complaint to the Board that he or she was not appointed or proposed for appointment because of an abuse of authority in the application of merit.

[23] The complainant had the burden of proving that on a balance of probabilities, the respondent abused its authority (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at paras. 49 and 55). Section 30(1) of the Act states that appointments to or from within the public service must be made on the basis of merit, and s. 30(2)(a) states that an appointment is made on the basis of merit when the person to be appointed meets the essential qualifications, as established by the deputy head.

[24] “Abuse of authority” is not defined in the Act; however, its s. 2(4) offers the following guidance: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.” As then Chairperson Ebbs noted in Ross v. Commissioner of the Correctional Service of Canada, 2017 PSLREB 48 at para. 14, s. 2(4) must be interpreted broadly. That means that the term “abuse of authority” must not be limited to bad faith and personal favouritism.

[25] In Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 21 and 38, the Federal Court confirmed that the definition of “abuse of authority” in s. 2(4) of the Act is not exhaustive and that it can include other forms of inappropriate behaviour.

[26] As noted in Tibbs, at paras. 66 and 71, and as restated in Agnew v. Deputy Minister of Fisheries and Oceans, 2018 FPSLREB 2 at para. 95, an abuse of authority may involve an act, omission, or error that Parliament could not have envisaged as part of the discretion given to those with delegated staffing authority. Abuse of authority is a matter of degree. For such a finding to be made, an error or omission must be so egregious that it could not have been part of the delegated manager’s discretion.

[27] While the complainant’s representative did not present any cases in closing argument, I note the Board’s decision in Johnston v. Director of Public Prosecutions, 2018 FPSLREB 65, in which I addressed the issues of bias in an appointment process, as follows:

…

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

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

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

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

…

Where bias is alleged, the following test can be used to analyze this allegation, while taking into account the circumstances surrounding it: If a reasonably well informed bystander can reasonably perceive bias on the part of one or more persons responsible for assessment, the Tribunal can conclude that abuse of authority exists.

…

[Emphasis in the original]

[28] I also note Bain v. Deputy Minister of Natural Resources Canada, 2011 PSST 28, which examined as follows the issue of a friendship and the finding of a reasonable apprehension of bias:

…

134 In examining issues of bias and of reasonable apprehension of bias, the courts have acknowledged that it is difficult to establish direct evidence of actual bias. The manner in which the test for bias should be applied was set out in dissenting reasons in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394.

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons applying themselves to the question and obtaining thereon the required information… [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [this person], whether consciously or unconsciously, would not decide fairly.

(emphasis added)

…

138 …

… close that a reasonable person would have concerns about the decision-maker’s ability to judge that matter impartially.

139 Candidates in an assessment process must be able to trust that the process will be run in a fair manner. A reasonable apprehension of bias taints the process and raises doubts about its integrity. Fairness requires that board members be diligent in avoiding situations that could give rise to an apprehension of bias of the decision-maker as an individual.

…

[Emphasis added]

B. Allegations

[29] The complainant alleged that Mr. Ouellette purposely misled him with respect to preparing for the test (for the initial assessment only).

[30] The respondent argued that the matter of the original test results was moot as they were discarded and as the complainant passed the subsequent assessment, which included a second interview and written test.

[31] The complainant’s representative asked Ms. Guilbault, the senior manager of the workplace, about the allegation that Mr. Ouellette provided misleading information with respect to the first test. She replied that she spoke to the complainant about it and that she saw where he felt that he had been misled.

[32] However, the complainant’s representative did not inquire further to potentially have the witness point to exactly where in the test the complainant’s feeling of being misled arose from.

[33] When the employer’s counsel asked Ms. Guilbault what she thought had been compromised, she replied that it was the motorcade and life cycle questions, according to what the complainant had told her.

[34] In her examination-in-chief, Ms. Guilbault testified that after hearing the complainant’s allegations about the first test, she spoke with Mr. Ouellette, who admitted to helping the complainant prepare for the test.

[35] She said that Mr. Ouellette said that he wanted as many candidates as possible to seek the position.

[36] I will analyze the first allegation with respect to the test, as any finding of animus against the complainant would support the core of his case that Mr. Ouellette sabotaged his candidacy for the appointment.

1. K1 - carpool policies and procedure

[37] The complainant testified to what he thought was purposely misleading information he received, about emergency equipment in administrative vehicles, in a conversation with Mr. Ouellette.

[38] The complainant stated as follows:

Feb 15, 2017 - Benoit showed up at the counter, not sure how the conversation started but he asked me if I was ready, I reply yes and that I been studying for almost 6 weeks, just out of the blue a question popped up wanting a response and says “is there police equipment in a admin vehicle” at this point not sure where he’s going, I reply yes, he say no, then I defend my answer stating in example a request to install a fireball and board radio during major event, he says that does not count, then I reply with the vehicles at Leomont that are driven by Public Servant with, he replies that the fuse must be off, at that moment a co-worker came in and made me very not comfortable which made him leave. Then the fuse got me thinking, I knew all police equipment where functional, wanted to confirm with a co-worker at Leomont which he did, fuse not off. Therefore this situation in my mind was inappropriate behaviour, especially that I was leaving shortly to do my test, I felt I was being tricked and actually I was not really not sure what was going on! The funny part is that the first question to the test, there was 2 parts to that question but it did relate to the conversation.

[Sic throughout]

[39] In response to this allegation, the respondent pointed to evidence that established that the issue of emergency equipment in administrative vehicles was indeed on the test in Q2 under K1.

[40] However, the evidence shows that the complainant received a mark of 4 out of 5 for his answer.

[41] In his closing remarks, the complainant’s representative did not point to any particular text in the evaluation materials or answer guide to show me any evidence that the complainant possibly overcame Mr. Ouellette’s information to receive a mark of 4 out of 5 on Q2 under K1.

[42] K1 also contained Q1 which addressed purchasing vehicles. The complainant did not allege that he was misled on this question. He received a mark of 0 for his answer to it.

[43] Neither the testimonies nor my review of the documentary evidence allows me to conclude that Mr. Ouellette’s intervention with the complainant, about knowledge of carpool policies and procedures related to K1, was intended or actually had any deleterious effect upon the complainant’s performance in answering the questions under K1.

2. K3 - motorcade composition

[44] After a careful review of the testimony and exhibits, I am unable to find sufficient evidence to support a finding that Mr. Ouellette somehow misled or sabotaged the complainant’s conduct of this part of the evaluation.

[45] The complainant testified as follows:

He started with “we might be also asking to give example of motorcade composition”! Then I showed him the sheet on Level of Security I had, he says don’t worry about that one it is not on the test and point out [sic] with his finger to another page which is “Category of Event” “That one will be in it!”

[46] In argument, the respondent noted that the complainant received a mark of 5 out of 5 for his answers to K3. Thus, he did not appear to have been disadvantaged by Mr. Ouellette’s interventions with respect to K3.

[47] However, I looked beyond the mere marking in case on his own good efforts, the complainant might have overcome some potential misdirection on K3 from Mr. Ouellette.

[48] After looking again at what the complainant testified was Mr. Ouellette’s advice about K3, it is not apparent that Mr. Ouellette gave him any misleading information such as the complainant alleged as part of an attempt to sabotage his performance on the test in the first assessment.

[49] The complainant noted in his written statement that he discussed his qualifications with Mr. Ouellette and that he wished to confirm his experience with life cycle material management. He stated:

He (Ouellette) asked if I knew the 4 stages of the life cycle of material, I indicated that I was not sure, he then asked me to enter his office, he informed me of the 4 stages which are Planning, Acquisition, Operation & Maintenance and Disposal/Replacement. I reply that I had the first 3 phases for sure but need to confirm with my previous supervisor if I have the 4^th stage. My previous supervisor confirms that I did have this stage regarding the disposal of computer equipment.

[Sic throughout]

[50] While the complainant did not pursue this matter as a specific allegation related to K4 in the written evaluation, my review of the evidence on this matter shows that despite Mr. Ouellette simply highlighting the importance of this topic, the complainant received a mark of 2 out of 5, which was a failing mark for the question dealing with this topic.

[51] The evidence before me does not support my finding that Mr. Ouellette somehow misled the complainant on the subject of life cycle material management such was alleged to have been an effort to sabotage the complainant’s performance in the first assessment process.

3. Mr. Ouellette intervened in the second evaluation process

[52] The complainant stated the following:

This being said then on March 09, 2017 I received an email from Benoit Ouellette responding to our meeting of Feb 20, 2017, the sad part he was getting coach by Nathalie Guilbault, I knew this because Benoit Ouellette forgot to delete the part where she’s coaching him on the word “document” and Nathalie Guibault attest it was her once I had demand if it was her, it was easy to figure this out, therefore this was a slap in the face, for me it was a breach of trust.

[Sic throughout]

[53] The complainant’s representative did not tender any documents as exhibits and did not point to any other exhibits during the hearing that showed Ms. Guilbault’s alleged comments.

[54] Nor was Ms. Guilbault asked about any such comments or their contents and intent during her cross-examination.

[55] Given this lack of evidence, I have nothing upon which I can make a finding of Ms. Guilbault coaching Mr. Ouellette as was alleged.

4. Mr. Ouellette ensured that the complainant’s assignment was not renewed despite his statement that it would be renewed

[56] The complainant testified that that Mr. Ouellette ensured that his assignment was not renewed despite Mr. Ouellette’s earlier verbal assurance that it would be renewed.

[57] The Board does not have jurisdiction to consider and make a determination on a matter involving an assignment (see Ait Lahcen v. Commissioner of the Correctional Service of Canada, 2009 PSST 0013).

[58] However, this allegation was presented at the hearing more as added evidence of there being bias against the complainant throughout the appointment process.

[59] There is no evidence before me on this matter other than this allegation and the complainant’s statement that he had received verbal assurance that his assignment would be extended.

[60] Given the lack of other evidence supporting this claim, I am not able to make a finding on this allegation that would support the claim of bias.

[61] The complainant also relied upon two documents entered as exhibits. He received them from his co-worker, Mr. Leduc, who later succeeded in receiving the appointment at issue.

[62] In the first document, in his email (Exhibit BA-1), Mr. Leduc writes as follows to convey what he said he heard from Mr. Ouellette, who was on a phone call: “During the conversation, Benoit was heard very clearly saying that we just need to reopen the AS-03 competition for all of Ottawa and put less knowledge for visits and more for management. Benoit said that I would ‘train’ him or her …”.

[63] Ms. Guilbault was asked about this purported phone conversation. She confirmed that she had indeed conducted a phone conversation with Mr. Ouellette at about that same time.

[64] However, she testified that the call was about drafting the text for an acting operations manager process, which was different from the one at issue in this complaint.

[65] The second document (Exhibit BA-2) is the email in which Mr. Leduc expresses his concerns to Ms. Guilbault that he perceived some actions of Mr. Ouellette as an attempt to influence the second process.

[66] The concerns are about Mr. Ouellette’s interventions to have Mr. J. assigned to a particular duty because Mr. Ouellette wanted him to gain experience. Mr. Leduc writes that he protested that it was not a proper assignment, that it was out of rotation, and further that Mr. Ouellette is not to be involved in the appointment process.

[67] Ms. Guilbault testified that the experiential aspect of the criteria for the appointment was already addressed in the initial candidate screening. She explained that the issue of one candidate being given experience in a particular event would have been of no assistance to him in the appointment process.

[68] She testified that she did not believe that this action of Mr. Ouellette was related in any way to the appointment process but rather that he wished to have as many experienced staff as possible in all these different aspects of the job.

[69] While I accept the second document as Exhibit BA-2, over an objection of respondent counsel as it is hearsay, I don’t find the contents of it as being persuasive given the testimony stating that the experiential factor cited in the document was not relevant after the initial screening anyways. As such I am more dissuaded of it by its lack of probative value that the facts it was hearsay evidence.

[70] Consequently, given these findings, I conclude the evidence is not sufficient to support the allegation that that Mr. Ouellette intervened in the second assessment.

V. Conclusion

[71] The complainant has a strongly held opinion after his many interactions with his colleagues and with Mr. Ouellette. The complainant is convinced that he was unfairly denied the appointment and further that his assignment was unfairly concluded.

[72] The allegation that Mr. Ouellette gave the complainant allegedly misleading information for the first test is troubling. Ms. Guilbault testified that she found the so-called assistance with the test problematic and stated that it was contrary to proper staffing policies and procedures.

[73] However, I note and agree with the submissions of the employer’s counsel, who pointed to the evaluation process being restarted with a new assessment, and with the testimony of Ms. Guilbault that Mr. Ouellette had no input into the outcome of the process.

[74] As I reflect upon each allegation on its own and all of them combined, I am not able to conclude that it is more likely than not that a reasonably well-informed bystander viewing this matter, could reasonably perceive bias on the part of one or more persons responsible for the assessment.

[75] For these reasons, I must conclude that the complainant did not meet his burden of proof of establishing on a balance of probabilities that an abuse of authority occurred. I dismiss the complaint.

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

VI. Order

[77] I order the complaint dismissed.

April 14, 2021.

Bryan R. Gray,

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