Date: 20220310

File: 771-02-42229

 

Citation: 2022 FPSLREB 15

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

 

ATOUSA SHAFAIE

Complainant

 

and

 

DEPUTY HEAD

(Department of Health)

 

Respondent

and

OTHER PARTIES

Indexed as

Shafaie v. Deputy Head (Department of Health)

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

Before: Edith Bramwell, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: David Yazbeck, counsel

For the Respondent: Fabio Onesi, representative

For the Public Service Commission: Louise Bard, senior analyst

Decided on the basis of written submissions,

filed August 19 and 27 and September 3 and 21, 2021.

REASONS FOR DECISION

I. Introduction

[1] The complainant, Atousa Shafaie, made a staffing complaint, alleging that the respondent, the deputy head of the Department of Health (“the respondent”), abused its authority in the application of merit and in its choice of a non-advertised appointment process.

[2] The respondent requests that the complaint be dismissed because the complainant was not in the area of selection for the process, which means that she was not in the area of recourse to make the complaint. The complainant objects to the request, arguing that the respondent exercised personal favouritism in making the appointment and that it established a narrow area of selection to deliberately exclude her from her right of recourse against the appointment. Consequently, this decision only deals with the respondent’s motion to dismiss. It does not address the merits of the complaint.

[3] For the following reasons, I find that the Federal Public Sector Labour Relations and Employment Board (“the Board”) has no jurisdiction to hear this complaint. Allegations of the improperly motivated establishment of an area of selection cannot confer jurisdiction on the Board to hear a complaint from a person outside the area of recourse.

II. Background

[4] On October 14, 2020, the respondent posted a Notification of Appointment or Proposal of Appointment (NAPA) on the Government of Canada’s jobs website, announcing an indeterminate promotional appointment by non-advertised process to the position of HTPSA Evaluator (BI-04 group and level) at the Health Canada - Health Products and Food Branch (HPFB)- Biologic and Radiopharmaceutical Drugs Directorate (BRDD) in Ottawa, Ontario.

[5] On October 28, 2020, the complainant made a complaint with the Board, pursuant to s. 77 of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”). She alleged that the respondent abused its authority 1) in the application of merit (s. 77(1)(a)) by engaging in personal favouritism and acting in bad faith and 2) by choosing a non-advertised process rather than using an established pool of qualified candidates from a prior advertised process (s. 77(1)(b)).

[6] On January 11, 2021, the respondent submitted a motion to dismiss the complaint on the grounds that the complainant was outside the area of recourse to make a complaint, as set out in s. 77 of the PSEA.

[7] According to s. 77(1) of the PSEA, a person in the area of recourse may make a complaint to the Board that he or she was not appointed or proposed for appointment. Section 77(2)(b) states that in a non-advertised process, a person is in the area of recourse if the person was in the area of selection for the process. The Public Service Commission (PSC) has the authority under s. 34 to determine areas of selection but often delegates this authority to deputy heads like the respondent, in accordance with s. 15(1).

[8] As set out in the NAPA, the respondent established the following area of selection for this non-advertised appointment process: “Employees of Health Canada - Biologic and Radiopharmaceutical Drugs Directorate working and occupying a position in the National Capital Region.”

[9] The BRDD is one of the regulatory directorates within the HPFB.

[10] In her complaint, the complainant stated that she is employed at Health Canada in the Veterinary Drugs Directorate, which was not within the area of selection. As a result, the respondent submits that she was outside the area of recourse and did not have the right to make a complaint. The respondent referred to the former Public Service Staffing Tribunal’s decision in Umar-Khitab v. Deputy Head of Service Canada, 2007 PSST 5, which held that there is no jurisdiction to hear a complaint under s. 77 made by a person outside the area of selection.

[11] The complainant objected to the respondent’s request. Both in her complaint and in her initial response to the dismissal motion, she contended that when the respondent set the area of selection, it was aware that she might seek recourse against the appointment and that it limited the area of selection to improperly exclude her from the area of recourse and to deny her the right to make a complaint.

[12] Given the complainant’s response, the Board sought and obtained submissions from her, the respondent, and the PSC on the following issue:

Does the Board have jurisdiction to hear a complaint from someone who is outside the area of selection where it is alleged that the deputy head restricted the area of selection in order to personally favour the appointment of the appointee and to prevent the complainant from exercising a right of recourse?

 

III. Analysis

[13] The complainant asserts that throughout the appointment process, the manager was motivated by personal favouritism. She asserts that a non-advertised process was implemented with an improper motive of facilitating the appointment of an unqualified incumbent, despite the existence of valid, fully assessed pools of qualified candidates. The restrictive area of selection was, in her view, chosen deliberately to shield this improperly motivated appointment from the Board’s complaint process.

[14] The complainant submits the following in support of her allegations:

1) The area of selection for this process was more restrictive than in other similar processes, and the respondent provided no meaningful rationale to explain the restriction.

 

2) According to the complainant, the respondent confirmed that on the date of the appointment at issue, “valid” pools were in place, comprising a total of three qualified candidates from two prior processes, both of which had areas of selection greater than the BRDD. The respondent ignored these existing candidate pools, including one from a 2015 advertised process for BI-04 positions, in which the complainant was one of two remaining qualified candidates when the appointment at issue was made.

 

3) Other areas of recourse chosen for appointments to similar positions in the BRDD were not as restrictive as the one at issue. These five examples were submitted:

 

I) A 2015 advertised process for BI-04 positions within the HPFB was open to “[p]ersons employed at Health Canada occupying a position in the Health Products and Food Branch across Canada.”

 

II) A 2017 advertised process for a BI-04 position was open to all employees of Health Canada, the Public Health Agency of Canada, and the Patented Medicine Prices Review Board who occupied a position in the National Capital Region.

 

III) The appointee in this case had been occupying the HTPSA evaluator position on an acting basis since September 2019. The area of selection for that non-advertised acting appointment was “Employees of Health Canada – Health Products and Food Branch working and occupying a position in the National Capital Region”, which is broader than the area used for the appointee’s indeterminate appointment in 2020.

 

IV) An October 2020 non-advertised process for a BI-05-level acting appointment had an area of selection of all Health Canada employees working and occupying a position in the National Capital Region.

 

V) The BRDD initiated another advertised BI-04 appointment process in June 2021. It was open to persons employed in Health Canada, the Public Health Agency of Canada, the Canadian Institutes of Health Research, the Canadian Food Inspection Agency, and the Patented Medicine Prices Review Board occupying a position in the National Capital Region.

 

4) The appointee was not properly assessed, and the assessment tools used were biased, unreliable, and unfair.

 

5) In determining the area of selection, the respondent did not follow Health Canada’s Policy on Area of Selection of April 2016 or the PSC’s Appointment Delegation and Accountability Instrument (“ADAI”).

 

[15] In sum, the complainant points to several alleged facts that might, if proven, lend some support to a finding that the appointment was motivated by personal favouritism and that the area of selection was established in such as way as to shield the improperly motivated appointment from the Board’s scrutiny.

[16] For these allegations to be heard and considered, the complainant must first have had a right to make a complaint before the Board, which is the very question at issue. Despite the many arguments she has submitted that could, if proven, point to a possible abuse of authority, unquestionably, she was outside the area of selection, and therefore, in accordance with the clear language of s. 77(2) of the PSEA, she was not within the area of recourse. Based on a plain reading, it is evident that the Board would have no authority to deal with her complaint.

[17] On what basis does the complainant contend that the Board has jurisdiction? She submits that while s. 77 of the PSEA establishes the grounds of complaint and the area of recourse, it does not address circumstances in which it is alleged that the area of recourse itself was established for inappropriate reasons that amount to an abuse of authority; namely, to avoid recourse altogether. She urges the Board to look beyond the respondent’s characterizations of what occurred, to determine if the facts are consistent with those characterizations.

[18] The complainant indicates that this type of determination is common in the history of litigation under the PSEA, as in numerous cases, respondents have attempted to avoid recourse by characterizing staffing actions in a certain way or by otherwise attempting to limit an employee’s recourse rights. Courts have consistently concluded that it is not what the respondent states that is determinative but what actually happened in the case. In this case, given the complainant’s contention that the area of recourse was not established in good faith and that it was merely a fabrication or sham by which the prohibited abuse of authority was achieved, then, consistent with the broader goals and purpose of the PSEA, she must be given the right to make a complaint.

[19] In support of this argument, the complainant referred to the Supreme Court of Canada’s decisions in Doré v. Canada, [1987] 2 S.C.R. 503, and Canada (Attorney General) v. Brault, [1987] 2 S.C.R. 489, which dealt with a previous version of the PSEA before it was significantly reformed in 2003. In those cases, the Court noted that to determine the application of the merit principle and the right of appeal (the recourse mechanism at the time), one must review an employer’s decision objectively, as a matter of fact, and not based on what the employer might have intended or understood it was doing as a matter of law.

[20] The complainant contends that the Board should not be bound by the respondent’s simple assertion with respect to “the nature of a selection process.” A broad and purposive approach of the PSEA must be adopted, in light of the serious issues at play, including an egregious abuse of power and process by the respondent, and the Board can and must consider her complaint.

[21] However, it is not clear that Doré and Brault address the issue in this case. In both cases, the question before the Court was whether the direction to an employee to perform other tasks constituted an assignment, as the employer had described it, or an appointment to a new position, as the complainants successfully argued. The Court held that in fact, an appointment had been made, and, as the respondent correctly states in its submissions, it confirmed that the right of recourse that existed in that version of the PSEA was available because the condition for it was met — an appointment was made.

[22] There is no similar factual interpretation to be made in the present case. The complainant was not in the area of selection established pursuant to s. 34. Section 77(2) is explicit — persons who are not in the area of selection do not have a right to make a complaint. The current PSEA does not confer upon the Board any jurisdiction to examine complaints made by those outside the area of selection.

[23] The complainant overlooks this fact in arguing that no principle of statutory interpretation would allow the Board to decline jurisdiction over a subject matter that Parliament clearly intended it to consider. She acknowledges in her submissions that the respondent’s determination of the area of selection is a decision that the Federal Court may judicially review. But, she submits that “... surely Parliament did not intend that matters of this nature would be considered through the judicial review
process ...”.

[24] However, the Board’s authority is derived from its enabling statutes, and it cannot simply assert jurisdiction over areas that Parliament did not assign to it merely because it might have been possible for it to have been granted that power. The legislation is clear and unequivocal — if the person is not in the area of selection, the person does not have the right to complain under s. 77.

[25] The complainant states that Parliament could have expressly denied recourse in circumstances such as in the present case and the fact that it did not demonstrate that recourse is available to her. She points to s. 77(3) of the PSEA, which specifies that “[t]he Board may not consider an allegation that fraud occurred in an appointment process or that an appointment or proposed appointment was not free from political influence.” She argues that when Parliament specifically excludes certain matters, then other related matters are not excluded. She submits that these other matters would include the kinds of allegations she has made in this case. Parliament would have added them to the list in s. 77(3) if it intended to exclude them.

[26] The issue before the Board in this case is not about what matters can be brought before it but rather who is entitled to make a complaint to it. Section 77(3) provides that a staffing complaint under s. 77 (i.e., made by someone in the area of recourse) may not include a claim of fraud or political influence. The provision has no bearing on who can make a complaint but rather on what the person entitled to make one can allege and argue.

[27] The complainant also seemed to argue that by issuing an order for the production of information (OPI) earlier in the complaint process, the Board implied that there could be evidence indicating that the “... establishment of recourse is tainted and therefore questionable.” It would be inconsistent for the Board to decline jurisdiction after earlier ordering “disclosure”. A request for an OPI is a mechanism for a party to obtain information prior to a hearing that is arguably relevant to their complaint. It allows the requesting party to have the necessary information to make their case. In the complainant’s situation, the Board determined that the information she sought was arguably relevant for her to reply to the respondent’s motion to dismiss. The decision was in no way determinative of the Board’s jurisdiction over the matter.

[28] The complainant alluded to the fact that in some of its decisions, the Board has enquired into the circumstances surrounding the determination of the area of selection and whether it was motivated by favouritism, referring, as an example, to Kavanagh v. President of Shared Services Canada, 2017 FPSLREB 38.

[29] But in that and other similar cases, there was no doubt about whether the complainant was in the area of recourse. The evidence about the determination of the area of recourse was examined, to determine if it supported the allegations of abuse of authority, including the exercise of personal favouritism. The evidence was not relied upon to establish that someone who was not in the area of selection for a non-advertised appointment could nonetheless have a right to make a complaint.

[30] As mentioned earlier, a person who is not in the area of selection with respect to a non-advertised appointment process is not necessarily without recourse. Those who cannot make a complaint under s. 77 of the PSEA may still seek judicial review of an appointment and the decisions leading up to it, including the determination of the area of selection.

[31] There may also exist other avenues of recourse under the PSEA to correct a delegated authority’s alleged inappropriate or improperly motivated actions.

[32] The complainant noted that the PSC’s delegation to deputy heads of its authority to determine the area of selection is governed by the ADAI. The PSC explained in its submissions that the ADAI identifies the authorities that deputy heads may subdelegate, the conditions of the delegation, and the accountability. The PSC added that by virtue of its Appointment Policy and the ADAI, it ensures that deputy heads respect legislative and policy requirements. Thus, a deputy head’s determination of the area of selection is not without any scrutiny from the PSC. In any case, it is clear that Parliament chose not to assign to the Board the role of reviewing these determinations.

[33] Similarly, the PSC has the authority to deal with fraud allegations. According to s. 69 of the PSEA, the PSC may investigate an appointment process if it has reason to believe that fraud has occurred (see Seck v. Canada (Attorney General), 2012 FCA 314, where the Federal Court of Appeal broadly defined fraud in the appointment process).

[34] It is not for this Board to determine which of these avenues of recourse, if any, may be available in this case. However, it is clear that Parliament did not provide the Board with the authority to determine if an abuse of authority occurred in the establishment of the area of selection. The Board’s mandate, pursuant to s.88(2) of the PSEA, is limited to considering and disposing of complaints made under ss. 65(1), 74, 77 and 83 of the Act. Those sections do not allow a complaint about the establishment of the area of selection. Where evidence has been admitted with regard to bad faith in setting an area of selection, it has generally been because this evidence was used to support an allegation in regard to matters for which this Board does have jurisdiction, such as an allegation of abuse of authority in the choice of a non-advertised appointment process. However, before even hearing that evidence, the complainant must first have a right of recourse before the Board.

[35] For all of the above reasons, I find that the complainant was outside the area of selection and that she did not have a right of recourse to the Board under s. 77 of the PSEA. The Board has no jurisdiction to consider this complaint.

[36] The Board grants the respondent’s motion to dismiss the complaint.

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

(The Order appears on the next page)

IV. Order

[38] The respondent’s motion is granted, and the complaint is dismissed.

March 10, 2022.

Edith Bramwell,

a panel of the Federal Public Sector

Labour Relations and Employment Board