Date: 20210629

Files: EMP-2017-10992 and 10993

 

Citation: 2021 FPSLREB 78

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

 

charles bÉrubÉ AND pierre gautreau

Complainants

 

and

 

DEPUTY MINISTER OF INDUSTRY

 

Respondent

and

OTHER PARTIES

Indexed as

Bérubé v. Deputy Minister of Industry

In the matter of a complaint of abuse of authority under sections 77(1)(a) and (b) of the Public Service Employment Act

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

For the Complainants: Themselves

For the Respondent: Viviane Beauregard, counsel

For the Public Service Commission: Louise Bard, senior analyst

Heard by videoconference,

November 9 and 10, 2020, and March 10, 2021.

(FPSLREB Translation)

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Introduction

[1] The complainants, Charles Bérubé and Pierre Gautreau, each made a complaint under ss. 77(1)(a) and (b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13; PSEA), alleging abuse of authority by the respondent, the Deputy Minister of Industry, also known under the applied title of Innovation, Science and Economic Development Canada (ISEDC or “the respondent”). According to the complainants, abuse of authority occurred in the choice of a non‑advertised process, the choice of merit criteria, and the assessment of the candidate to staff the senior advisor, small business branch, position classified at the EC-08 group and level.

[2] The respondent denies abusing its authority during the appointment process.

[3] The Public Service Commission (PSC) did not attend the hearing, but it submitted written submissions about its applicable policies and guidelines. It did not take a position on the merits of the complaints.

[4] For the following reasons, the complaints are dismissed. The complainants did not demonstrate that on a balance of probabilities, the respondent abused its authority in the context of the appointment process.

II. Background

[5] On February 8, 2017, a “Notice of Acting Appointment” (NAA) was issued, stating that Wai Fai Lee had been appointed to the senior advisor position (EC‑08) for the period from September 12, 2016, to September 12, 2018.

[6] The complainants made their complaints of abuse of authority with the Public Service Labour Relations and Employment Board (PSLREB) on February 23, 2017.

[7] 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 PSLREB’s name to the Federal Public Sector Labour Relations and Employment Board (“the Board”).

[8] On March 21, 2017, the PSLREB ordered the two complaints consolidated for the purposes of a hearing.

A. Issues

[9] I must decide the following issues:

1) Did abuse of authority occur in the choice of a non-advertised appointment process?

2) Did abuse of authority occur in the choice and assessment of the merit criteria?

 

III. Summary of the evidence

[10] Both complainants testified at the hearing.

[11] The respondent called two witnesses, Christian Laverdure, the director general, business services, and the director general of ISEDC’s consumer section as of the staffing process, and Alain Pelletier, the director supervising the Human Resources, Business Partners, team as of the process.

[12] It is important to note that in September 2013, the senior advisor (EC-08) position was classified at the EC-08 group and level at ISEDC. “J.J.”, the incumbent, had started in the position on February 22, 2016. Organizational changes were made at ISEDC over the course of 2016, and J.J.’s position was transferred to Mr. Laverdure’s team. In fall 2016, J.J. temporarily left his position to go on assignment with Interchange Canada, and the departure was expected to continue until September 2018. Mr. Lee was appointed to the position on an acting basis to replace J.J.

[13] At the hearing, Mr. Gautreau stated that he has worked in the public service for 36 years. As of the hearing, he held a senior manager, information products, position at the EC-07 group and level. He worked in Mr. Laverdure’s branch. He explained that over 10 years earlier, Mr. Lee, who held a CS-03 position, and Mr. Lee’s team reported to him. The team managed websites. Mr. Gautreau explained that the products that the team delivered did not contain market analyses and did not include economic data. He added that while managing websites, the team received a large number of client requests. Some involved issues with the application’s accounting calculations that required changes to the application’s programming. Mr. Lee, from the CS Group, was responsible for making the corrections to the application. According to Mr. Gautreau, Mr. Lee is highly skilled, and he fixed the bugs in the programs.

[14] Mr. Gautreau stated that on September 7, 2016, Mr. Laverdure met with his immediate team of managers, which included Mr. Gautreau. Mr. Laverdure announced to them that Mr. Lee had qualified in a process for a position at the CS-05 group and level. According to Mr. Gautreau, Mr. Laverdure did not want to take the risk that a third party would recruit Mr. Lee. He had a solution in mind. Given J.J.’s absence from the EC-08 position for two years, he intended to appoint Mr. Lee to the position for two years. After announcing his intention, Mr. Laverdure asked the managers present to inform him if they were interested in the position. According to Mr. Gautreau, by announcing his intention to keep Mr. Lee, Mr. Laverdure clearly showed personal favouritism toward him. According to him, Mr. Laverdure should have met individually with candidates potentially interested in the senior advisor position (EC-08).

[15] Mr. Gautreau stated that his education was more in line with the EC-08 position than that of Mr. Lee, that he had much more experience than Mr. Lee, and that he could have qualified for the position. In addition, he said, he held a position at the EC‑07 group and level. He explained that he has a bachelor’s degree in engineering and a master’s degree in administration (MBA). According to Mr. Gautreau, Mr. Laverdure’s choice had been made, and he planned to select a candidate from the CS-03 group and level for the position at the EC-08 group and level. Therefore, Mr. Gautreau had no chance.

[16] On September 8, 2016, Mr. Gautreau informed Mr. Laverdure by email that his team members would probably ask him questions about Mr. Lee’s acting appointment, since Mr. Lee did not seem to meet the position’s education criteria.

[17] On September 12, 2016, Mr. Lee started in the position.

[18] After his email, Mr. Gautreau saw no announcement about Mr. Lee’s appointment. Nor did he see any change in the work that Mr. Lee performed. It seemed to Mr. Gautreau that Mr. Lee’s tasks continued to be oriented to websites, and he still directed the same team. Before his departure, J.J. did not have a technical team under his control.

[19] On January 27, 2017, more than four months after Mr. Gautreau sent his email, Mr. Laverdure replied. He stated that the candidate met the position’s requirements and that the respondent had taken all necessary steps to ensure that the process followed staffing rules.

[20] On the same day, January 27, 2017, the first notice was issued. The area of recourse was limited to employees under Mr. Laverdure’s direction. Therefore, Mr. Gautreau was able to challenge it. However, the area of recourse was later broadened to allow other employees to make complaints.

[21] Mr. Gautreau stated that in the week after the notice was issued, several economists from all over the department shared their dismay with him that the appointed candidate did not seem to possess the qualifications for the position.

[22] On February 8, 2017, the new appointment notice was issued. It broadened the area of selection.

[23] On February 21 or 22, 2017, Mr. Gautreau met with Mr. Laverdure. According to Mr. Gautreau’s recollection, Mr. Laverdure told him that he had considered Mr. Gautreau for the position. According to him, Mr. Laverdure also maintained that Mr. Lee was qualified for the position. Mr. Gautreau maintained that Mr. Lee was not.

[24] On February 23, 2017, Mr. Gautreau made his complaint.

[25] As for Mr. Bérubé, he explained that he has two master’s degrees and a doctorate from the Université du Québec à Montréal. He has been working at ISEDC since 2007 and holds a senior researcher, small business branch, position at the EC-07 group and level. He conducts socio-economic research, meaning research related to social and economic phenomena and their relationship in support of policy development at ISEDC.

[26] He explained that when he joined ISEDC in 2014, the EC-08 position referred to in the complaint was in his section, which conducted socio-economic research. However, it was later transferred to the branch where Mr. Laverdure worked. Yet, according to Mr. Bérubé, the branch conducts no research, and transferring the position there was illogical.

[27] He explained that in his field, researchers form communities of experts based on specific issues. In some fields, for example, he provided an authoritative expert analysis. Communities of experts allow gathering reliable and quality information on all areas of uniform law. That was why he was keenly interested in a position at the EC-08 group and level.

[28] He explained that after the notice was posted announcing Mr. Lee’s retroactive appointment on an acting basis to the EC-08 position for two years (from September 12, 2016, to September 12, 2018), the researchers (whose positions are at the EC-04, EC-05, and EC-06 group and levels) asked him about the notice. He stated that EC-08 is the last step in the EC Group and that they were all outraged by the appointment of an employee whose position was at the CS-03 group and level and who had neither the training nor the experience for an EC-08 position.

[29] Mr. Bérubé asked Human Resources for the position’s work description (position number 16038). A few days later, Human Resources’ director sent him the original work description in English. Later, it was translated. However, according to Mr. Bérubé, the translation did not reflect at all the importance of the essential items listed in the English version.

[30] On February 22, 2017, Mr. Bérubé met with Mr. Laverdure to find out more about the position and to try to convince Mr. Laverdure that as a researcher, he could research Canada’s digital transformation. However, he told Mr. Bérubé that he had a pressing and immediate need to continue the activities already underway in the team. Several large-scale projects were already in progress.

[31] According to Mr. Bérubé, he asked Mr. Laverdure about the steps taken to find the best candidate. Mr. Laverdure replied that he had done so within his group. He had invited his managers to notify him of their interest in the position. At the meeting, none of them showed interest in performing the work that J.J. had done. Therefore, he announced that he planned to appoint Mr. Lee to the EC-08 position, to ensure the continuity of the work that was underway.

[32] On February 23, 2017, Mr. Bérubé made his complaint.

[33] Mr. Laverdure explained that the work description for the senior advisor position (EC-08) came into effect in 2013.

[34] In 2015, Mr. Laverdure assumed the duties of the director general of business services and the director general of the consumer section at ISEDC. In 2016, after the organizational changes at ISEDC, J.J. joined Mr. Laverdure’s team.

[35] In fall 2016, J.J. temporarily left his position, and the departure with Interchange Canada was to last until September 2018.

[36] The departure created operational needs in Mr. Laverdure’s team. He was obliged to staff the position due to new ISEDC requirements. At that time, he needed a candidate who could continue the work that J.J. had initiated to implement a digital strategy as part of government services to the public. Among others, the projects in progress at the time included the single window, online services, and implementing a business number. To do that work, the person holding the position had to be aware of national and global trends in digital technology and digital transformation.

[37] Mr. Laverdure has no recollection of informing Mr. Gautreau or anyone else that Mr. Lee qualified in a staffing process for a position at the CS-05 level and that he wanted to keep Mr. Lee on his team.

[38] Given J.J.’s imminent departure, Mr. Laverdure approached two Human Resources representatives, one of whom was Mr. Pelletier. Mr. Laverdure’s objective was to find someone to replace J.J. during his two-year absence. A consensus was gradually reached in those discussions that an acting appointment was the best solution.

[39] Therefore, Mr. Laverdure discussed that option with his team of managers, which included Mr. Gautreau. He invited them to tell him if they were interested in the position. Mr. Lee was not at the meeting. None of the managers expressed interest in the position. At the meeting, Mr. Laverdure addressed the option of appointing Mr. Lee to the position.

[40] Mr. Lee worked with J.J. for Mr. Laverdure. Mr. Laverdure felt that Mr. Lee had the required knowledge and expertise to fill the senior advisor position. He would be able to continue the several ongoing projects aimed at implementing a digital strategy as part of government services provided to the public.

[41] In September 2016, in discussions with Mr. Lee, Mr. Laverdure made sure that Mr. Lee was the right person, meaning the best qualified and the most experienced, to fulfil the specific requirements sought during J.J.’s absence. Mr. Lee had been in the project lead (CS-03) position at ISEDC since August 2003. He had worked with J.J. and had responded to ISEDC requests arising from modernizing programs and services.

[42] Then, Mr. Laverdure informed the senior management team that he felt that Mr. Lee had the knowledge and experience to fill the position during the two-year period. He explained that Mr. Lee was on the lookout for national and global trends in digital transformation and that he was very familiar with the field of digital services delivery. The senior management team approved Mr. Lee’s appointment to the position on an acting basis.

[43] On September 12, 2016, Mr. Lee began performing the duties of the new senior advisor (EC-08) position while continuing his CS-03 duties.

[44] Mr. Laverdure, in collaboration with Human Resources, prepared a new statement of merit criteria (SOMC) for the work to be accomplished. First, he reviewed the merit criteria used in J.J.’s appointment. Human Resources representatives advised him to identify the key experience in connection with ISEDC’s current operational and organizational requirements. Then, he relied on his knowledge of Mr. Lee’s abilities, which he had observed since 2015, to assess the candidate.

[45] In October and November 2016, Mr. Laverdure prepared the document entitled, “Assessment of qualifications based on the Statement of Merit Criteria (SoMC) and Conditions of Employment”.

[46] Finally, Mr. Laverdure specified that his relationship with Mr. Lee was strictly professional. They had never associated outside the office.

[47] I note that in the months that followed a mediation session held in July 2017, the respondent completed two classification analyses for the senior advisor (EC-08) position that at the time, Mr. Lee held on an acting basis.

[48] On September 29, 2017, after a mediation session, Mr. Laverdure sent the complainants an additional analysis that the respondent had prepared. It provided more detail on the extent to which the candidate met the position’s requirements. At the hearing, the complaints challenged its value. I did not assign it any importance since it was produced after the appointment that the staffing complaint challenged. As a reminder, my mandate is to review whether abuse of authority occurred when Mr. Lee was appointed to the senior advisor position on February 8, 2017. The additional analysis was prepared in September 2017 and did not exist as of the appointment.

[49] The February 8, 2017, acting appointment was retroactive to September 12, 2016, and was valid until September 12, 2018. Initially, the duration was intended to be from September 12, 2016, to September 12, 2018. However, Mr. Lee’s acting appointment was extended a few times for six-month periods, given J.J.’s extended absence. As of the hearing, Mr. Lee continued to occupy the position.

[50] In April 2018, Mr. Laverdure left his ISEDC position.

IV. Analysis

[51] Section 77 of the PSEA specifies that an unsuccessful candidate in an advertised internal appointment process may make a complaint to the Board that he or she was not appointed or proposed for appointment by reason of an abuse of authority.

[52] “Abuse of authority” is not defined in the PSEA. However, s. 2(4) provides the following: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism” [emphasis added]. As indicated in Tibbs v. Deputy Minister of National Defence, 2006 PSST 8, abuse of authority may also include improper conduct or significant omissions. In a complaint of abuse of authority, the complainant has the burden of proof (see Tibbs, at paras. 48 to 55).

A. Issue 1: Did abuse of authority occur in the choice of a non-advertised appointment process?

[53] The complaints were made under s. 77(1)(b) of the PSEA, which provides the following right of recourse when the choice of appointment process is in dispute:

77 (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Board’s regulations — make a complaint to the Board that he or she was not appointed or proposed for appointment by reason of

...

(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process ....

 

[54] And s. 33 of the PSEA states, “In making an appointment, the Commission may use an advertised or non-advertised appointment process.”

[55] At the hearing, Mr. Laverdure explained why he chose a non-advertised process to staff the position on an acting basis.

[56] He explained that discussions took place with Human Resources representatives about the acting appointment at meetings held on September 1, 12, and 20, 2016. Then, on March 2, 2017, a team lead from the Human Resources branch prepared the written rationale for the choice of a non-advertised process. Mr. Laverdure explained that it was done in March because it had been forgotten to do it in writing earlier, even though the decision had been made and the acting appointment had been decided in September 2016. Thus, when the human resources advisors saw that the written rationale was missing from the staffing file, they ensured that the file was completed. The rationale specified the following:

[Translation]

...

This is a summary of the discussions held about the acting EC-08 at meetings on September 1, 12, and 20, 2016:

Management at the Office of Consumer Affairs (OCA) is experiencing a significant organizational change and now includes four branches: OCA - S4B - Service Lab and Innovation. A collaborative effort between the branch and HR must be initiated to establish the new structure and to forecast needs.

Among other things, the Innovation branch must respond to departmental and government service strategies, the implementation of the business number, and the challenges of “big data” and “open data” (government priority). An EC-08 senior advisor position will head the Innovation Division, and it is imperative that the person in the position be able to direct and implement services that include a significant digital or online component. This means that the person can distinguish between what can and cannot be implemented (the possible from the impossible).

The current incumbent of the EC-08 position has left until September 2018 via Interchange Canada, and you decided to fill the position temporarily until the incumbent returns. The chosen option is to offer an acting (non-advertised) of two years to Wai Fai Lee because you have established that he is qualified and is the best person to hold the position, given the specific requirements sought (digital). Due to his professional experience, Mr. Lee acquired the particular experience sought in terms of directing and implementing services that include a large digital or online component. You deem that this decision is the most effective way to meet government priorities while minimizing impacts/risks (service interruptions) that could arise if the position is not filled quickly.

Please confirm that this accurately reflects our discussions or correct the information, if needed.

...

 

[57] At the hearing, Mr. Laverdure stated that he agreed entirely with that rationale. In addition, he had deemed that an advertised process was not the most effective solution for staffing the position, given that J.J. was to be away only temporarily; that is, for two years. Mr. Lee was to replace J.J. during his absence, which initially was to be from September 12, 2016, to September 12, 2018.

[58] According to the complainants, the respondent demonstrated abuse of authority by not respecting the staffing management policy that had been in effect since April 1, 2016. They stated that the Human Resources branch team lead’s email to Mr. Laverdure of March 2, 2017, was not an adequate written rationale for the choice of a non-advertised process. They also insisted that that rationale was prepared 5 months after the appointment began and that it did not justify an acting appointment of 24 months. According to the complainants, posting the notice late could have given an undue advantage to the appointee in addition to sowing doubt among potential candidates in the area of selection who might have been inclined to exercise their right of recourse.

[59] Mr. Gautreau added that the retroactive nature of the appointment notice was a blatant lack of transparency. He also found it unfair that Mr. Laverdure had announced his intention to appoint Mr. Lee to the position before inviting others to express their interest in it. According to him, the choice of a non-advertised process was neither fair nor transparent.

[60] Mr. Gautreau also stated that the work involved in the business number implementation and the mega and open data challenges is not socio-economic research. He added that the incumbent, J.J., was not responsible for service delivery. However, according to Mr. Gautreau, Mr. Lee apparently kept his same duties as before. According to Mr. Gautreau, J.J. was not responsible for service delivery, and his departure did not create a risk of service interruption. He added that when it comes to socio-economic research, no service interruption is possible.

[61] Mr. Gautreau stated that there was no urgency to fill the position because no one was in it before the acting appointment. According to him, Mr. Laverdure did not want to lose Mr. Lee. J.J.’s absence provided an opportunity to keep Mr. Lee. Mr. Gautreau also added that it was strange to invoke urgency for an EC-Group position that carried out socio-economic research.

[62] Mr. Bérubé also disagreed with the statement that the appointment was the most effective way to meet government priorities while minimizing the risk of service interruptions that not filling the position quickly could cause. According to him, no one had been in the position for several months, and the situation was not urgent; it was foreseeable and known. To support his point, he directed my attention to Ayotte v. Deputy Minister of National Defence, 2009 PSST 21. In that decision, the Public Service Staffing Tribunal (“the Tribunal”) effectively deemed that urgency cannot be invoked when a situation is foreseeable and known.

[63] Mr. Bérubé also specified that the incumbent, J.J., was a business applications developer and that he had never published any socio-economic research as part of his EC-08 work. However, his appointment was not opposed because, according to Mr. Bérubé, J.J. had the required degree, and an appointment process had been held. However, according to Mr. Bérubé, Mr. Lee did not do the work that J.J. did. He added that J.J. had not been responsible for a team of employees developing web applications.

[64] The respondent’s view is that the decision to proceed with a non-advertised appointment was at the discretion of the manager, Mr. Laverdure, and that it was consistent with the PSEA and applicable policies. He emphasized that as specified in Robbins v. the Deputy Head of Service Canada, 2006 PSST 17, abuse of authority cannot be alleged simply because a non-advertised process was chosen.

[65] The respondent stated that the manager, Mr. Laverdure, had only about a month of notice before the incumbent was to depart on the 24-month assignment with Interchange Canada. The manager deemed that a non-advertised process would be the most effective way to meet government priorities while minimizing impacts and risks, particularly service interruptions that not filling the position quickly could cause. The Innovation branch had to respond to departmental and government service strategies, the business number implementation, and the challenges of mega data and open data, which are government priorities.

[66] Mr. Laverdure explained that it was imperative that the person in the position be able to direct and implement services that included a large digital or online component. The manager made an analysis and determined that no other employee could perform the duties of the position.

[67] Section 33 of the PSEA explicitly states that a non-advertised process may be used. The PSEA sets out no preference for advertised over non-advertised processes (see Brown v. Deputy Minister of National Defence, 2010 PSST 12). In addition, s. 30(4) of the PSEA specifies that it is not necessary “... to consider more than one person in order for an appointment to be made on the basis of merit.” As the Tribunal emphasized in Jack v. Commissioner of the Correctional Service of Canada, 2011 PSST 26 at para. 18, employees do not have “... guaranteed right of access to every appointment that may arise.”

[68] The respondent does not challenge the fact that it is important for management to prepare the rationale for the choice of process and to post the notice in a timely manner. However, it submits that in Brown, the Tribunal determined that this type of error or admission is not serious enough to constitute an abuse of authority. That principle was reiterated in Bérubé-Savoie v. the Deputy Minister of Human Resources and Skills Development Canada, 2013 PSST 2. It stated that the fact that the organization was undergoing restructuring contributed to the delay. Nevertheless, the manager had several discussions with Human Resources representatives before the appointment was made, the narrative assessment was completed, and the appointment notice was posted.

[69] The respondent also argued that in Silke v. Deputy Minister of National Defence, 2010 PSST 9, the Tribunal confirmed that a complaint cannot be made on behalf of another person and cannot involve how other employees were treated. For that reason, the complainants cannot complain that other employees could have been affected by the late posting of the notice.

[70] On the subject of the urgency of the appointment, which the complainants challenge, the respondent argues that the rationale does not mention an urgent situation but instead mentions the need to fill the position immediately to ensure the continuation of the essential and organizational needs of the organization’s programs and services. Indeed, Mr. Laverdure needed a candidate who could continue the work of implementing a digital strategy as part of government services to the public that J.J. had begun.

[71] For its part, the PSC argues that under s. 33 of the PSEA, when it makes an appointment, the PSC or delegated authority may use an advertised or a non-advertised appointment process. It did not take a position on the complaints.

[72] I find that the complainants did not establish evidence of an abuse of authority by the respondent in the choice of a non-advertised appointment process.

[73] The complainants argue that there were shortcomings in Mr. Lee’s appointment among other things because the rationale for choosing a non-advertised process was prepared only on March 2, 2017. Therefore, the rationale did not exist when Mr. Laverdure approved Mr. Lee’s appointment. That is true.

[74] However, the evidence demonstrates that even though the rationale had not yet been prepared, Mr. Laverdure and Human Resources representatives consulted and discussed when the appointment was made. According to the evidence, the consultations took place on September 1, 12, and 20, 2016.

[75] Therefore, the evidence shows that the essence of the rationale and the assessment was prepared before the appointment. Certainly, it is important for management to prepare the rationale for the choice of process and to post the appointment notice in a timely manner. However, it was decided in Brown that this type of error or omission is not serious enough to constitute an abuse of authority. Therefore, I believe that the complainants failed to demonstrate how preparing the rationale late was in itself an abuse of authority.

[76] I note that in Hunter v. Deputy Minister of Industry, 2019 FPSLREB 83, the panel of the Board found that a series of deficiencies in the appointment process’s administration constituted an abuse of authority. The deficiencies also included the absence of a written rationale at the decision stage. I would add to that error the initial refusal to provide one to a potential candidate and the later position that none was required (see paragraph 90 of the decision). In this case, as of March 2, 2017, the respondent recognized that a rationale was required. Precisely because it saw that the rationale was not in the file, it went ahead and prepared it.

[77] The complainants also argue that by choosing a non-advertised appointment process, the respondent did not respect the values of fairness and transparency set out in the preamble to the PSEA. Mr. Gautreau also stated that the process was unfair, basically because he did not have an opportunity to apply.

[78] On that point, I note that Mr. Laverdure stated that at a meeting, he offered the managers in his division the opportunity to let him know if they were interested in the position. That is not what happened, according to Mr. Gautreau. Instead, at the meeting, Mr. Laverdure let the managers know of his intention to appoint Mr. Lee to the position so that he would not be lost. However, both Mr. Laverdure and Mr. Gautreau acknowledged that Mr. Laverdure had invited feedback from the managers on the issue of staffing the position. Mr. Gautreau also stated that he had no desire to apply for the position in front of the others present. He later emailed Mr. Laverdure, expressing his disagreement with Mr. Laverdure’s intention to appoint Mr. Lee to the position on an acting basis. In the email, he did not express interest in the position.

[79] The issue of not being able to apply to a non-advertised appointment process was addressed in Jarvo v. Deputy Minister of National Defence, 2011 PSST 6. At paragraph 35, the Tribunal pointed out the following:

35 ... Under the PSEA, non-advertised appointment processes are not unfair merely because they eliminate the opportunity for employees to apply; that is the essence of their nature. Given the very nature of a non-advertised appointment process, the lack of opportunity to apply cannot reasonably be the basis for determining an absence of fairness.

 

[80] Consequently, even though Mr. Gautreau did not have the opportunity to apply, I am convinced that the choice of proceeding with a non-advertised process was fair and legitimate. According to Mr. Laverdure’s and Mr. Pelletier’s testimonies, they chose that way of proceeding objectively and with the intention of finding a qualified and experienced person as soon as possible to replace J.J. during his two‑year absence. Mr. Laverdure explained that Mr. Lee was the best person for the position, given his ability to deal with its digital aspect. In fact, Mr. Lee had helped J.J. in his work since J.J. joined the team. Thus, according to Mr. Laverdure, Mr. Lee had gained the specific skills required to perform J.J.’s senior advisor duties.

[81] The complainants suggested that Mr. Lee does not carry out senior advisor duties. In particular, J.J., who had held the position, did not have a team under his direction. However, according to the evidence submitted, it appears that Mr. Lee indeed replaced J.J., although he kept some of his old project lead (CS-03) duties. In my view, his appointment to the senior advisor position was not a subterfuge concealing a dishonest objective. All the witnesses agreed that among other things, Mr. Lee is implementing a service for the business transformation program that includes a digital component. That task fell to J.J. and was a merit criterion in the context of J.J.’s appointment to the position. In my view, the true issue is the complainants’ argument that this type of task does not come under the EC Group, which mainly performs economic or socio-economic research.

[82] In summary, I believe that the rationale for the choice of a non-advertised appointment process properly explains why a non-advertised instead of an advertised process was chosen. J.J. was to be away for two years. Mr. Laverdure used a non‑advertised appointment process because it was the most effective staffing method to meet ISEDC’s needs.

[83] Therefore, I find that the complainants did not establish evidence of an abuse of authority by the respondent in its choice of a non-advertised appointment process.

B. Issue 2: Did abuse of authority occur in the choice and application of the merit criteria?

[84] The complaints were also made under s. 77(1)(a) of the PSEA, which refers to s. 30(2). Those provisions read as follows:

77 (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Board’s regulations — make a complaint to the Board that he or she was not appointed or proposed for appointment by reason of

(a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2) ....

...

30 (2) An appointment is made on the basis of merit when

(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and

(b) the Commission has regard to

(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,

(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and

(iii) any current or future needs of the organization that may be identified by the deputy head.

 

[85] First, with respect to the choice of merit criteria, the facts of the issue are as follows. Mr. Laverdure explained that the SOMC and conditions of employment used to staff the position at J.J.’s appointment consisted of five experience criteria. J.J. was appointed to the EC-08 position in 2014, before Mr. Laverdure assumed the director position in 2015. The SOMC was used to staff the indeterminate position.

[86] Given that the issue was to find a replacement for J.J., and thus for a two-year acting appointment, the management team believed that the SOMC could be simplified and reduced to three criteria based on the operational needs at that time. Therefore, Mr. Laverdure identified the most relevant criteria based on the respondent’s operational needs as of the acting appointment.

[87] Mr. Pelletier explained that he advised Mr. Laverdure in that respect. He has worked in staffing since 2003. He has participated in hundreds of staffing processes since then. As of this staffing process, he was a director, supervising a Human Resources team. When he advised Mr. Laverdure, he considered that the technological aspect related to the EC-08 position was important in Mr. Laverdure’s team. Indeed, he became aware that it was very important that the candidate have the technical knowledge to translate information-technology jargon for the senior management team.

[88] Thus, on September 6, 2016, after revising the work description and the selection criteria listed in the existing SOMC for the EC-08 position, he specified the following in an email to Mr. Laverdure: “[Translation] I noticed that it [the SOMC] contains many criteria. I have not analyzed it in detail, but I think it would be possible to eliminate some of them to simplify the narrative assessment.” At the hearing, he specified that the work description and the SOMC were very detailed, even for an advertised process, and that it was more efficient and appropriate to shorten the SOMC. According to him, an SOMC has to be adapted to the context and has to be dynamic and not static. Therefore, it was important to keep the relevant parts and to omit the irrelevant ones at the time.

[89] Thus, the SOMC and the conditions of employment were simplified. Mr. Laverdure chose the following three experience criteria to meet ISEDC’s operational needs as of the acting appointment:

[Translation]

1. Significant experience leading research supporting the development of services for business policies and programs.

2. Experience leading and implementing a service for the business transformation program that had a large digital or online component.

3. Experience managing projects related to complex economic and service-delivery initiatives.

 

[90] The complainants allege that the SOMC was tailored and that it did not meet the position’s requirements.

[91] According to them, the SOMC did not reflect the required level of expertise that corresponded to the position’s work description and the classification standards associated with EC positions.

[92] Mr. Bérubé brought my attention to the senior advisor (EC-08) position’s work description. He insisted that its core is the economic or socio-economic aspect. The first key activity identified is the following:

[Translation]

Plan and direct economic and socio-economic analysis and research to support the development, implementation, and evaluation of service delivery strategies, policies, programs, frameworks, and initiatives to encourage the growth and competitiveness of Canadian SMEs and to improve the delivery of services and government programs, and to facilitate Canadian SME’s access to those programs and services.

 

[93] According to Mr. Bérubé, the experience required to staff the position that Mr. Lee held completely negates the key activity in the work description. In particular, he brought my attention to these two merit criteria used in the process that led to J.J.’s appointment, which were omitted in the process that led to the acting appointment:

[Translation]

1. Significant experience* providing strategic advice to senior management, including the director general, assistant deputy minister, and the deputy minister.

...

5. Experience establishing and maintaining work relationships with different partners and stakeholders, including members of other departments, federal, provincial, and territorial organizations, and private companies.

...

 

[94] Mr. Bérubé also stated that Mr. Lee does not have the required experience. His experience, which is described in the assessment, is related to computer systems and not socio-economic research.

[95] According to Mr. Bérubé, BizPal is an online service that helps businesspeople create a customized list of licences and permits that they may need to launch or operate a business. The other experience mentioned, like the Interactive Business Planner, the Online Small Business Workshop, and the Canada Business Network, are all platforms and tools for providing services to businesses.

[96] Mr. Gautreau and Mr. Bérubé stated that the respondent did not have the right, either in 2014 for J.J. or in 2016 for Mr. Lee, to include the criterion “[translation] [e]xperience leading and implementing a service for the business transformation program that had a large digital or online component” in the processes that led to their appointments. According to them, this task does not correspond to the tasks that an incumbent of an EC-Group position performs. The employment standard for the EC Group that the Treasury Board Secretariat (TBS) set out describes the tasks that an incumbent of an EC-Group position performs.

[97] Therefore, the complainants’ view is that the SOMC does not meet the TBS’s qualifications standards for EC positions. To illustrate the point, Mr. Bérubé identified the March 16, 2016, information bulletin on the TBS’s website entitled, “Economics and Social Science Services (EC)”. It states, “On June 13, 2007 pursuant to section 11.1(1)(b) of the Financial Administration Act, the Treasury Board of Canada approved a new job evaluation standard for the Economics and Social Science Services (EC) Group ...”.

[98] According to the information bulletin, the Economics and Social Science Services (EC) Group includes positions that involve primarily, for example, conducting surveys, studies, projects, and tests that require practical knowledge of a specialized field, such as economics, history, law, or psychology, and that require developing specialized techniques and procedures, developing or using related data-processing applications, or interpreting findings.

[99] The information bulletin states the following about excluded positions:

...

Positions excluded from the Economics and Social Science Services Group are those whose primary purpose is included in the definition of any other group or those in which one or more of the following activities is of primary importance:

1. the operation, scheduling or controlling of the operations of electronic equipment used in the processing of data for the purpose of reporting, storing, extracting and comparing information or for solving formulated problems according to prescribed plans;

2. the collecting, recording, arranging, transmitting and processing of information, the filing and distribution of information holdings, and the direct application of rules and regulations;

3. the planning, development, delivery or management of policies, programs, services or other activities directed to the public or to the Public Service;

4. the explanation, promotion and publication of federal government programs, policies and services;

5. the application of a comprehensive knowledge of mathematics to the development or application of mathematical and analytical methods, including those of mathematical statistics; and

6. the planning, development, delivery and management of economic development policies, programs, services and other activities designed to promote the establishment, growth and improvement of industry, commerce and export trade and the regulation of trade and commerce.

...

 

[100] According to the complainants, the disputed criterion in the SOMC resembles activities 3 and 6. Therefore, it would be a task that no incumbent of an EC-Group position could carry out.

[101] Mr. Bérubé then submitted to me a similar document from September 30, 2014, entitled, “Computer Systems (CS)”, which he found on the TBS’s website. It states that under s. 101 of the Public Service Reform Act, the Treasury Board of Canada established the definition that applies to the Computer Systems Group effective March 18, 1999. It then states that that group comprises positions that involve primarily applying computer systems knowledge to planning, developing, installing, and maintaining information technology processing systems to manage, administer, or support federal government programs and activities.

[102] The information bulletin further states that the group comprises positions that as their primary purpose have responsibility for one or more activities listed under “Inclusions”. Mr. Bérubé brought my attention to activities 3, 4, 7, 8, and 9, as follows:

3. the analysis and design of business systems and supporting infrastructures and the construction and maintenance of the related software;

4. the design, implementation, installation and servicing of databases and database software, the control of the integrity, security and modification of the databases and the provision of database recovery/backup facilities;

...

7. the development and conduct or determination of:

a. the technical evaluation of information technology processing systems;

...

8. the provision of advice and consultation on information technology processing systems, facilities and applications including the evaluation of the technical security of these systems;

9. the conduct of planning and research into existing and future information technology processing systems capacity, capability, applications and requirements ....

 

[103] According to Mr. Bérubé, Mr. Lee carried out those activities, even though he had been appointed to the EC-08 senior advisor position on an acting basis. He insisted that activity 4 is precisely about designing, implementing, installing, and maintaining databases and database creation software.

[104] The complainants argue that the respondent showed personal favouritism and bad faith when it lowered the merit criteria and made the appointment. Thus, in their view, the respondent abused its authority. Mr. Bérubé is also of the view that Mr. Lee obtained a benefit from his appointment. He brought my attention to Spirak v. Deputy Minister of Public Works and Government Services Canada, 2012 PSST 20. Paragraph 42 of that decision reads as follows:

42 The Tribunal finds that the essential qualifications in the SMC for the parallel EG‑07 position the respondent created are less stringent in the “Experience” category than the comparable “Experience” category in the external advertised position. There were four areas of experience listed under the job posting that was advertised. Only two of those areas were listed in the “Experience” requirement in the non‑advertised parallel position. The non-advertised position did not require experience in managing finances related to construction projects and experience in managing multi‑trade teams related to construction. These latter criteria were part of the essential qualifications of the external advertised position. As a result, Mr. Carson was able to acquire the experience in managing finances related to construction projects and experience in managing multi-trade teams related to construction. Therefore, the Tribunal finds that Mr. Carson did benefit from the appointment and obtained an advantage.

 

[105] The respondent argues that in Visca v. Deputy Minister of Justice, 2007 PSST 24, the Tribunal stated that broad discretion is given to managers under s. 30(2) of the PSEA to establish the qualifications for the positions they want to staff and to choose those who not only meet the essential qualifications but also are the right fits to occupy the positions. According to the respondent, even though the complainants disagree with the SOMC, they had the burden of proving that abuse of authority occurred. Yet, in Feeney v. Deputy Minister of National Defence, 2008 PSST 17, the Tribunal confirmed that it is not necessary to list the essential qualifications of a particular position in a work description. Managers are simply required to establish the qualifications for the work to be performed (see also Neil v. Deputy Minister of Environment Canada, 2008 PSST 4).

[106] The respondent stated that the manager reviewed its needs before staffing the position temporarily. The SOMC was developed in partnership with Human Resources to ensure that it conformed with the qualifications standards and that it met the position’s needs. Thus, the SOMC was designed to reflect the current needs of the position’s duties. The appointee was assessed and was found qualified. The respondent showed me the key activities listed in the EC-08 senior advisor position’s work description that apply to this case. It brought my attention to the third and fifth paragraphs under “Key Activities”. Paragraph 3 involves the following activity:

[Translation]

As a departmental specialist, advises Industry Canada directors and senior management on policy development, legislative amendment proposals, operational issues, and the repercussions and implications of policy and legislative amendment rules with respect to the technological transformation required to support initiatives such as exploiting the opportunity to capitalize on a single window for online services for companies doing business with the federal government, exploiting opportunities to increase the use of the business number during transactions with the federal government, and developing a strategy for providing faster and easier access to Government of Canada transactions and information through electronic services.

 

[107] Paragraph 5 involves the following activity:

[Translation]

During legislative/regulatory amendments, manage the process of amending legislation at the Parliament level, which includes developing and implementing a strategy for communications and for all documents intended for the Cabinet, MPs, the House of Commons Standing Committee, the Senate, and the media, to ensure appropriate coordination with the department’s Communications branch.

 

[108] The respondent’s view is that the SOMC reflects these activities and that the complainants’ allegations are based on personal perceptions and their opinions about the merit criteria that should have been chosen and how the process and the assessment should have been conducted.

[109] The PSC stated that the PSEA gives deputy heads the authority to establish merit criteria. Under s. 30(2)(a), the essential qualifications that the deputy head establishes must be related to the work to be performed. In addition, the qualifications must meet or exceed the applicable qualification standards that the employer established.

[110] The complainants insist that the essential qualifications that appear in the SOMC were watered down and do not meet the qualification standards of the classification of the position in question. However, I note that I have no jurisdiction to determine whether the position is classified correctly and in accordance with the applicable classification standards. However, I have jurisdiction to hear complaints that the respondent abused its authority when it established essential qualifications that do not meet or exceed the applicable qualification standards that the employer established.

[111] I note that in Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 44, the complainant argued that the respondent had abused its authority in several areas, including the following: 1) the complainant argued that performing the position’s daily duties required the incumbent to have recent pilot experience and that the appointee had none; and 2) the complainant argued that the respondent had paid little heed to the classification standard and that it had changed the essential qualifications for the acting position; i.e., the requirement for recent experience piloting an aircraft should not have been removed from the essential qualifications for the position.

[112] The Tribunal found that it had no jurisdiction to determine whether a position was classified correctly and according to applicable classification standards. However, it found that it had jurisdiction to hear a complaint alleging that the deputy head had abused its authority when establishing the essential qualifications. That would be so if the qualifications did not meet or exceed the applicable qualification standards that the employer established.

[113] In Rinn, the Tribunal found that the complaint was unsubstantiated. It noted that the appointment involved a temporary acting position and that the appointee met all its merit criteria. The relevant paragraphs of the decision are as follows:

...

[40] Subsection 31(2) of the PSEA stipulates that the essential qualifications established by the deputy head for a position, and used in making an appointment based on merit, must meet or exceed the qualification standards established by the employer. Section 31 reads as follows:

31. (1) The employer may establish qualification standards, in relation to education, knowledge, experience, occupational certification, language or other qualifications, that the employer considers necessary or desirable having regard to the nature of the work to be performed and the present and future needs of the public service.

(2) The qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i) must meet or exceed any applicable qualification standards established by the employer under subsection (1).

[41] Subsection 31(2) refers back to paragraph 30(2)(a) and subparagraph 30(2)(b)(i) and, therefore, must also be included in the criteria for making an appointment on the basis of merit. Thus, the Tribunal has jurisdiction to hear a complaint that the deputy head abused its authority by establishing essential or additional asset qualifications that do not meet or exceed the applicable qualification standards established by the CPSA for the employer.

...

[Emphasis in the original]

 

[114] Therefore, my role is to determine whether the qualifications that appear in the SOMC for the acting senior advisor position met or exceeded the qualification standards established for the position at issue.

[115] For the reasons that follow, my view is that Mr. Laverdure was able to establish a link between the qualifications that appeared in the SOMC and the qualification standards established for the EC Group.

[116] The qualification standards brought to my attention at the hearing were in the information bulletin of March 16, 2016, entitled, “Economics and Social Science Services (EC)”. According to that bulletin, when the primary responsibilities of a position are associated with one or more of the activities listed in its points 1 to 8, the positions are included specifically in the EC Group. The primary responsibilities to consider are the following:

...

Inclusions

Notwithstanding the generality of the foregoing, for greater certainty, it [Economics and Social Science Services] includes positions that have, as their primary purpose, responsibility for one or more of the following activities:

1. the conduct of surveys, studies, projects and tests requiring a practical knowledge of a specialized field such as economics, history, law or psychology and requiring the development of specialized techniques and procedures, or the development and use of related processing applications, or the interpretation of findings;

2. the identification, description, classification, organization and location of archival, gallery, library or museum materials; or the creation, manipulation, verification, analysis and transmission of descriptive records pertaining to such materials, both of which require a practical knowledge of the subject matter;

3. the editing of legislation or the conduct of studies in matters such as land conveyancing, expropriation, litigation and labour relations requiring a practical knowledge of the specific legal area to interpret findings or prepare submissions;

4. the application of a practical knowledge of a specialized field such as economics, history, law or psychology to the use and modification or adaptation of computer systems, utilities or software;

5. the application of a comprehensive knowledge of economics, sociology or statistics to economic, socio-economic or sociological studies, forecasts and surveys in a variety of subject areas in domestic and/or international settings;

6. the application of a comprehensive knowledge of economics, sociology or statistics to the development, application and evaluation of statistical and survey methods and indicators for use in natural or social science research projects, or in the planning of surveys and censuses or in the determination of statistical measures and techniques for data analysis and reporting;

7. the provision of advice in the fields of economics, sociology and statistics; and;

8. the leadership of any of the above activities.

[Emphasis in the original]

 

[117] The respondent demonstrated that the qualifications that appear in the SOMC for the acting senior advisor position correspond to primary responsibility 4 noted earlier. Responsibility 5 also applies. Therefore, I believe that the respondent demonstrated that the qualifications that appear in the SOMC for the acting senior advisor position meet the qualification standards established for this group. I note that according to this information bulletin, it is sufficient that the primary responsibilities are associated with “one or more of the ... activities” listed in points 1 to 8.

[118] I am mindful that Mr. Laverdure chose the three merit criteria to reflect the work to be performed and ISEDC’s organizational needs as of the appointment on an acting basis. He required a candidate who could continue the work that J.J. had begun. It was imperative that the candidate be able to implement a digital strategy in the context of government services to the public and to advise senior management in that respect.

[119] I heard the complainants’ argument that “[e]xperience leading and implementing a service for the business transformation program that had a large digital or online component” was required to fit the candidate’s profile. However, I note that that qualification was also a merit criterion used in the staffing process that led to J.J.’s appointment to the indeterminate position in 2014. Therefore, it was not a new criterion “[translation] invented” by Mr. Laverdure.

[120] Mr. Laverdure explained that some of the ongoing projects as of the appointment included single-window projects, online services, and business number implementation. He explained that the candidate had to be able to direct and implement projects with a digital component. The candidate had to have knowledge of national and global digital technology trends and digital transformations.

[121] I also note that Mr. Laverdure had to fill the position temporarily until the incumbent’s return, which was originally to be September 2018. As emphasized in Visca, under s. 30(2) of the PSEA, managers have considerable discretion when establishing the qualifications for the positions they wish to staff and when choosing those who not only meet the essential qualifications but also are the best fits for the positions.

[122] I also note that in Feeney, the Tribunal confirmed that it is not necessary to list a position’s essential qualifications in a work description. In that case, the respondent included possessing a provincial driver’s licence in the essential qualifications for a civilian firefighter position. The complainant applied for the position, but he obtained his provincial driver’s licence after the appointment process’s closing date. Therefore, his candidacy was eliminated from the process. He argued that the respondent had required a provincial driver’s licence for the sole purpose of favouring some candidates from a different fire department. He added that the ability to drive a vehicle was not indicated as a requirement anywhere in the work description.

[123] The Tribunal found that establishing the requirement to possess a provincial driver’s licence as an essential qualification fell under the respondent’s discretion. It also determined that it is not necessary to list a particular position’s essential qualifications in a work description. Managers have broad discretion to select and use assessment methods to determine whether a candidate has the established qualifications. The complaint was dismissed.

[124] The complainants also state that Mr. Laverdure showed favouritism toward Mr. Lee. According to them, Mr. Lee has much less experience with economic and socio-economic research than they do. Their argument is based on the fact that Mr. Lee held a CS-Group position until his acting appointment. He had never held an EC-Group position before the appointment.

[125] In that respect, I note that Spirak, which was brought to my attention, is distinguished from this case. In it, the complainant alleged that the respondent abused its authority in the application of merit by extending the appointee’s acting appointment for a year through a non-advertised process. The Tribunal found that the evidence related to that appointment established the existence of personal favouritism and noted the following at paragraph 73:

73 The appointment of Mr. Carson occurs against a backdrop in which the manager and the appointee, who share the same professional affiliation, discussed, albeit jokingly, the creation of a business enterprise. The manager devoted time to recruit workers to assist the appointee in framing a garage, paid the workers $8,000 in cash and devoted two weekends to help perform the work required. These events have the hallmark of a personal relationship. When this relationship is considered in combination with the serious errors surrounding this appointment, the Tribunal finds that the complainant has established that the respondent abused its authority with respect to Mr. Carson’s December 2009 reappointment on an acting basis to the position of Head, Construction Management.

 

[126] Thus, there was reason to believe that the hiring manager and the appointee had a personal relationship. That is not so in this case. In my view, the evidence submitted did not establish that the non-advertised appointment process was tainted by personal favouritism. The complainants did not demonstrate that Mr. Laverdure and Mr. Lee had a personal relationship that was other than professional.

[127] I also note that in Soccar v. the Commissioner of the Royal Canadian Mounted Police, 2013 PSST 14, the respondent offered the appointee several consecutive acting appointments. With respect to acting appointments, the Tribunal found that the respondent had valid reasons for choosing non-advertised processes and that the complainant failed to establish that the respondent demonstrated personal favouritism or bias when it made the appointments.

[128] Based on the evidence submitted at the hearing, I find that the appointment involved a temporary acting position, as specified. Mr. Lee’s initial appointment period was for two years, but it was then extended for six-month periods more than once. Nonetheless, Mr. Laverdure explained why he chose the merit criteria. My mandate is to decide whether the choice of those criteria constituted an abuse of authority. I find that the evidence submitted does not allow me to conclude that the choice of merit criteria constituted an abuse of authority. Therefore, the complaint of abuse of authority based on that reason is dismissed.

[129] I also find that the evidence submitted does not allow me to conclude that Mr. Laverdure and Mr. Lee had a personal relationship that was other than professional. Therefore, the complaint of abuse of authority based on personal favouritism toward Mr. Lee is also dismissed.

[130] Second, the complainants allege that the appointee is not qualified for the position.

[131] These are the facts of this issue. First, the SOMC included the following essential qualifications with respect to education:

[Translation]

Education:

Degree from a recognized university with an acceptable specialization in economics, sociology, or statistics.

NOTE

Candidates must always have a university degree. The courses that make up the specialization do not have to be part of a program of study leading to a degree in the required field of specialization. The specialization can also consist of an acceptable combination of education, training, and/or experience.

...

[Emphasis in the original]

 

[132] With respect to Mr. Lee’s education and the issue of whether he met the education criterion, Mr. Laverdure considered the fact that Mr. Lee completed a bachelor of science (chemistry major) in 1994 at Carleton University in Ottawa, Ontario. He felt that that education, combined with his work experience, was adequate. He wrote the following when he assessed the candidate:

The candidate has a university degree from Carleton University and has taken a statistic course and the candidate has extensive practical experience applying economics and statistical principals in the delivery of online services to Small and Medium Size businesses such as the Interactive Business Planner (IBP) tool,
Online Small Business Workshop (OSBW), Canada Business Network and BizPaL. Through these services, the candidate carried out analysis on key economic data including market segmentation,
import/export data, operational cost, import and export data, labour market data, market size and market risks etc.

The candidate’s experience on the design and management of the interactive business planner which includes the development of sample business plans and the creation of an online tutorial to
help business owners better understand production, distribution and selling of their products and services provides the candidate with a level of knowledge and experience from a practical perspective. In addition, the candidate has strong knowledge of psychology principles used understand business client needs from a service interaction and usability perspective.

[Sic throughout]

 

[133] Then, with respect to the three experience criteria and whether Mr. Lee met them, Mr. Laverdure considered the following facts, which he summarized in his assessment of the candidate that is in the document entitled, “Assessment of qualifications based on the Statement of Merit Criteria (SoMC) and Conditions of Employment”, and that reads as follows:

...

[1.] Significant experience* in leading research in support of the development of service to business programs or policies.

The candidate has significant experience leading research on the development of sample business plans and financial planning tools. Through the course of 4 years, the candidate carried out sector specific market analysis, which included industry size, growth trends and market segmentation, start-up cost, operational
expenses, start-up costs, liabilities and on financial indicators such as break-even analysis, profitability ratios etc.

 

[2.] Experience in leading and implementing a service to business transformation agenda that has a large digital or online component.

The candidate has significant experience leading business transformation projects that have a large online component. The
candidate has led the transformation of the Canada Business Network (CBN) and BizPaL digital presence for over 6 years.

The candidate led the consolidation of 12 provincial and territorial websites into a single CBN national service that provided
regional and sectorial customization while providing clients with improve access to reliable business information.

With BizPaL, the candidate led the transformation of the partnership service, including the development and implementation of a restaurant industry information bundle (information wizard) for the partnership to support regional
customization of the service to meet the needs of the local restauranteurs. Over the past 2 years, the candidate has
led efforts to align the organization’s digital service to support deep level integration of key economic data in the objective of
providing better integrated services to Canadian businesses.

 

[3.] Experience in project management specifically related to complex economic and service delivery initiatives.

The candidate has significant experience managing projects on service delivery initiatives with complex economic data.

For example, the candidate led the reengineering of a new Canada Business Network (CBN) website, which required the incorporation of complex Government of Canada procurement spending and other economic data sources from open government and Statistics Canada in the context of SME needs. Managing a multidisciplinary team, the candidate led the process of evaluating economic data at the most granular level. As part of this process, economic reports were analysed and key data elements were extracted and
categorized to support a modular delivery of the information.

...

[Sic throughout]

 

[134] According to the complainants, the candidate’s assessment was flawed, and the merit criteria were not applied fairly and transparently.

[135] With respect to the education criterion, Mr. Gautreau argued that the qualifications require a degree from a recognized post-secondary institution with an acceptable specialization in economics, sociology, or statistics. Mr. Lee has an undergraduate degree in science with a chemistry specialization. The assessment indicates that Mr. Lee completed only one statistics course. However, according to the different testimonies, he took two courses in that specialty.

[136] According to Mr. Gautreau, the websites cited as experience contain no economic, statistical, or socio-economic data. He added that Mr. Lee did not undertake any economic, statistical, or socio-economic research with respect to the websites. Mr. Lee’s work on the websites involved designing them. With respect to Mr. Lee’s psychology knowledge, Mr. Gautreau stated that it can be useful for a web developer seeking to develop a good visitor experience on a website. However, it is not relevant to economic or socio-economic research.

[137] With respect to Mr. Lee’s education, Mr. Bérubé asked Human Resources for details on the makeup of an acceptable specialization in economics, sociology, or statistics. According to Mr. Bérubé, a Human Resources representative replied that two courses are sufficient, as long as the specialization is made up of an acceptable combination of education, training, or experience.

[138] Mr. Bérubé stated that the respondent requires two complete semesters or one complete year of courses for employees to be appointment at the EC-06 and EC-07 levels. He submitted two job postings for EC-06 and EC-07 positions to demonstrate it. He states that it is unacceptable that the respondent would agree to the incumbent of the EC-08 position having only two courses in the field. He added that in fact, since 2015, the respondent has required one full year or two semesters of courses in economics, sociology, or statistics for all EC-Group positions at ISEDC. Therefore, he insisted that the course or courses in statistics that Mr. Lee took, combined with his practical experience, cannot be considered sufficient. According to him, ISEDC applies this criterion strictly to positions at the EC-04, 05, 06, and 07 levels. Thus, not being strict with respect to the position at the top of the scale is inconsistent.

[139] Mr. Bérubé also adduced into evidence a document entitled, “[translation] EC Recruitment and Development Program - Analysis Component”. It outlines the tasks of an EC analyst at Statistics Canada. It specifies that the program (analysis component) combines mandatory structured training with practical work experience, which usually consists of two 12‑month rotational assignments.

[140] Then, to demonstrate that the chosen candidate does not meet the experience criteria, Mr. Gautreau argued that the first criterion, “[translation] [s]ignificant experience leading research supporting the development of services for business policies and programs”, in the context of the work description, means economic and socio-economic research in support of programs and policies. According to him, developing website content does not correspond to economic research. Nor does developing a business plan template constitute economic and socio-economic research.

[141] Mr. Bérubé also disagrees with the candidate’s assessment on the first experience criterion. He disagrees with the notation that the candidate conducted analyses on key economic data, particularly on “... market segmentation, import/export data, operational cost, ... labour market data, market size and market risks etc.” Mr. Bérubé replied that statistics on the number of searches on a website, the cost of the site, or even a statistical description of businesses using information portals do not constitute socio-economic research experience. He insisted that the assessment does not demonstrate that the candidate has experience researching and directing research work in support of designing services for policies and programs intended for businesses. He referred me to the following decisions: 1) Tibbs; 2) Cameron v. Deputy Head of Service Canada, 2008 PSST 16; 3) Robert v. Deputy Minister of Citizenship and Immigration, 2008 PSST 24; and 4) Ayotte v. Deputy Minister of National Defence, 2009 PSST 21. He brought my attention to paragraph 108 of Ayotte, which reads as follows:

108 The Tribunal has stated in previous decisions, such as Tibbs v. Deputy Minister of National Defence et al., [2006] PSST 0008, Chiasson v. Deputy Minister of Canadian Heritage et al., [2008] PSST 0027, and Cameron and Maheux, at paragraph 75, that “abuse arises when the delegate acts on inadequate material in making a discretionary decision, including where there is no evidence or without considering relevant matters.”

 

[142] With respect to the second required experience, “Experience leading and implementing a service for the business transformation program that had a large digital or online component”, the complainants argue that this experience requirement is surprising, given that it is inconsistent with the work expected of an EC-Group member. Mr. Bérubé emphasizes that the TBS’s CS Group definition includes positions having as a primary purpose the following activity: “... planning and research into existing and future information technology processing systems capacity, capability, applications and requirements ...”. Mr. Bérubé adds that it is strange that the SOMC would contain a qualification that refers to experience that would not found be in the TBS’s EC Group definition. Note that this allegation was analyzed in the earlier part of the decision that deals with the choice of merit criteria.

[143] On the third required experience, “Experience managing projects related to complex economic and service-delivery initiatives”, Mr. Gautreau stated that Mr. Lee had directed a series of projects. However, he handled the computer part; he did not carry out an EC’s work. In addition, given that Mr. Lee had always been in a CS position, his experience in an EC position cannot have come from his past work. According to Mr. Gautreau, delivering websites is not research.

[144] Mr. Bérubé submitted similar arguments. According to him, the experience noted is not relevant, and it is far from experience researching and conducting socio-economic studies. The required experience completely negates the essential economic or socio-economic aspect as described in the work description for the EC position.

[145] According to Mr. Bérubé, the respondent, including the Human Resources branch, does not seem to understand the work of an EC or socio-economic research. He emphasizes that anyone who plans and directs socio-economic research must have a research plan that defines the benchmarks of the research. Then, the research projects and their objectives are described. He submitted in evidence several examples of research projects that he had produced.

[146] Finally, Mr. Bérubé disagrees with the fact that an EC-08 position was transferred to the Business Services team sometime in 2016. J.J. was already in the position then. However, the Board does not have responsibility over that decision.

[147] According to the complainants, with the foregoing, they demonstrated that there was bad faith, which constitutes an abuse of authority in the application of merit, as in Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 7. In summary, according to them, Mr. Laverdure appointed a candidate from the CS-03 group and level to an EC-08 position who had neither the degree nor the experience to perform the required duties as described in the work description. These are not merely errors or omissions. Cumulatively, the errors amount to carelessness so serious that it corresponds to bad faith (see Morgenstern v. Commissioner of the Correctional Service of Canada, 2010 PSST 18).

[148] As for the respondent, it argues that Mr. Lee worked in Mr. Laverdure’s division for many years. He acquired the skills of an EC position as part of his 15 years of working at ISEDC and of working directly with J.J. and the incumbents of EC-07 positions. Mr. Laverdure assessed Mr. Lee using his personal knowledge and Mr. Lee’s CV. Mr. Lee was able to continue the work J.J. had begun, implementing a digital strategy in the context of government services to the public and advising senior management about it. He knew of what was being done in digital language at the national and international levels.

[149] The respondent notes that as indicated in Jolin v. Deputy Head of Service Canada, 2007 PSST 11, and in Visca, s. 36 of the PSEA provides broad discretion for choosing assessment methods to determine whether a candidate has the qualifications established for the position.

[150] It argued that before appointing Mr. Lee to the position for a two-year period, Mr. Laverdure made certain that he was qualified and that he was the best fit for the position, given the specific desired requirements in the digital field. In the assessment document, Mr. Laverdure described how Mr. Lee met each essential qualification of the position.

[151] For those reasons, the respondent maintains that no abuse of authority occurred in the application of merit to and in the assessment of Mr. Lee.

[152] The PSC states that when an appointment is made, s. 36 of the PSEA allows the PSC or delegated authority, in this case the respondent, to use “... any assessment method ... that it considers appropriate to determine whether a person meets the qualifications ...”.

[153] Although there is great discretion when choosing assessment tools, nevertheless, deputy heads must respect the requirements of the PSC’s assessment policy.

[154] My role is to determine, based on the evidence and the testimony presented at the hearing, whether the complainants demonstrated that the respondent abused its authority when it assessed Mr. Lee.

[155] I find that the submitted evidence does not allow me to conclude that the respondent abused its authority. First, with respect to the education qualification, the job opportunity advertisement indicated that the education requirements were the following:

Education:

Degree from a recognized university with an acceptable specialization in economics, sociology, or statistics.

NOTE

Candidates must always have a university degree. The courses that make up the specialization do not have to be part of a program of study leading to a degree in the required field of specialization. The specialization can also consist of an acceptable combination of education, training, and/or experience.

...

 

[156] The last sentence in the quotation is the following: “The specialization can also consist of an acceptable combination of education, training, and/or experience.” In Abi‑Mansour v. President of the Public Service Commission, 2016 PSLREB 53 at para. 97, the Board established the following:

97 ... the inherent discretion in the word “may” suggests that the manager will have to decide whether a given combination is indeed acceptable. It cannot be that the applicant will decide what “may” be acceptable, as the complainant seems to imply....

 

[157] I believe that Mr. Laverdure explained in detail how he concluded that the candidate met each qualification. He explained that in addition to having an acceptable degree, to his credit, the candidate had at least one course in statistics and extensive practical experience applying economic and statistical principles to the online delivery of services to small and medium businesses. Mr. Laverdure relied on his knowledge of Mr. Lee’s skills, which he had observed since 2015. Therefore, in his view, Mr. Lee met the required education criteria.

[158] I believe that that conclusion was acceptable. In a number of decisions, the Board has confirmed that its role is to determine whether abuse of authority occurred and not to reassess appointees. Therefore, it is up to me not to reassess the qualification but instead to review whether the approach adopted was consistent with the requirements of the law. I agree with the statement in Abi-Mansour that “... the inherent discretion in the word ‘may’ suggests that the manager will have to decide whether a given combination is indeed acceptable.” In my view, Mr. Laverdure did not overstep his discretion.

[159] The complainants also argued that the assessment of Mr. Lee’s experience was inadequate. According to them, Mr. Lee does not have the experience qualifications required in the SOMC. In that respect, I reviewed the evidence submitted to me. Mr. Lee’s narrative assessment contains, for each qualification, a short text explaining how Mr. Laverdure established that Mr. Lee possessed the required experience qualifications. Although the narrative assessment is brief, in my view, it contains enough factors and information to support Mr. Laverdure’s conclusion that Mr. Lee has the required experience criteria.

[160] I understand that the complainants disagree with the fact that in 2016, a position at the EC-08 group and level was transferred to the Business Services team. According to them, the team does not conduct economic or socio-economic research, and the transfer was illogical. However, I note that the respondent is best positioned to establish the programs and services that it must deliver and the arrangements it will make to deliver them. The Board does not have the mandate to review those decisions. Thus, although Mr. Gautreau would like to see the senior advisor position in the Business Services team eliminated or relocated to a branch that conducts that specific type of research, the Board cannot provide that remedy.

[161] Therefore, the complainants did not establish that the respondent incorrectly assessed the appointee by concluding that he met all the education and experience qualifications.

[162] Therefore, the complaints of abuse of authority based on that reason are dismissed.

[163] Finally, I must highlight both parties’ remarkable work presenting their cases. The complaints are dismissed because, in my analysis of all the listed factors and the submitted arguments, I did not detect any substantial shortcomings. Nevertheless, I found that the complainants presented very well the important issues they faced and their perception of the abuse of authority that they experienced. Their efforts served to clarify the situation.

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

(The Order appears on the next page)

V. Order

[165] The complaints are dismissed.

June 29, 2021.

FPSLREB Translation

Nathalie Daigle,

a panel of the Federal Public Sector

Labour Relations and Employment Board