Date: 20220816

File: 771-02-38908

 

Citation: 2022 FPSLREB 70

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

 

Natalie Desalliers

Complainant

 

and

 

Deputy Head

(Department of Citizenship and Immigration)

 

Respondent

and

OTHER PARTIES

Indexed as

Desalliers v. Deputy Head (Department of Citizenship and Immigration)

In the matter of a complaint of abuse of authority pursuant to paragraphs 77(1)(a) and (b) of the Public Service Employment Act

Before: Amélie Lavictoire, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Herself

For the Respondent: Alexandre Toso, counsel

For the Public Service Commission: Alain Jutras, senior analyst

Heard by videoconference,

February 8 and 9, 2022.

[FPSLREB Translation]

 

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Complaint before the Board

[1] Natalie Desalliers (“the complainant”) made a complaint with the Federal Public Sector Labour Relations and Employment Board (“the Board”) under ss. 77(1)(a) and (b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”). The complaint was about an internal non‐advertised appointment process that took place in 2018 and that resulted in a 12-month acting appointment to a senior decision‐maker position classified at the PM‐06 group and level and located in Ottawa (process 2018-IMC-INA-ACIN-28181).

[2] The complainant alleged that the respondent, the deputy head of the Department of Citizenship and Immigration, abused its authority in the choice of a non‐advertised appointment process and in the application of merit in the process to staff a senior decision‐maker position in the Immigration Cases Division (ICD) within the Case Management Branch (CMB) of Immigration, Refugees and Citizenship Canada (IRCC). The complainant also alleged that personal favouritism tainted the appointee’s appointment.

[3] The complainant argued that the appointee lacked two of the experience criteria in the statement of merit criteria, namely, experience drafting decisions and experience providing strategic advice and recommendations.

[4] As of her secondment, Daphnée Clément (“the appointee”) was a hearings officer (FB‐05) with the Canada Border Services Agency (CBSA) in Montréal. She and the delegated manager responsible for the staffing process at issue were friends and had worked together in the past.

[5] The respondent acknowledged that the delegated manager and the appointee were friends and that they had worked together but denied any abuse of authority in the appointment process. It argued that its choice of process was justified in the circumstances. It also argued that the appointee met all the merit criteria and that the appointment was based on merit, not personal favouritism.

[6] The Public Service Commission did not attend the hearing but made written submissions. It did not take a position on the merits of the complaint.

[7] For the reasons that follow, I find that the abuse-of-authority allegation about the choice of process is unfounded. However, I find that the respondent abused its authority in the application of merit by appointing the appointee even though she did not meet all the merit criteria. The evidence on file is insufficient to establish personal favouritism as defined in the case law. But I find that the evidence established a reasonable apprehension of bias, which in itself is an abuse of authority.

II. Preliminary issue

[8] The day before the hearing, the respondent discovered that the final narrative assessment for the process was inadvertently not shared with the complainant or filed with the Board. The version that had been disclosed and filed was a draft. The document described as the final version is undated. However, it was attached to an email exchange that suggests that it was finalized on July 27, 2019, after an IRCC human resources advisor (“the human resources advisor”) made some suggestions.

[9] The final narrative assessment is more extensive than the one previously shared. It is more detailed on some merit criteria, including the experience criterion of providing strategic advice and recommendations. There is no difference between the so‐called “final” version and the previously shared version with respect to the experience criterion of drafting decisions.

[10] Given its relevance, the newly disclosed narrative assessment was accepted into evidence. The complainant had time to review it and the accompanying email exchanges. She was also informed of her right to question witnesses about the changes made to the final version and to make submissions as to the weight that the Board should give to it, which she did.

[11] Based on the evidence presented at the hearing, I conclude that the narrative assessment that the respondent provided the day before the hearing is indeed the final version that reflects the appointee’s complete assessment against the merit criteria. It was finalized even though the appointee was already in the position, which, according to the evidence presented at the hearing, is not ideal but is not an unacceptable practice for an acting appointment that can be finalized retroactively.

[12] Note that in this decision, the term “narrative assessment” refers to the final assessment version unless otherwise indicated.

III. Summary of the evidence

[13] Among other things, the ICD includes a team of senior decision makers and a team that supports them.

[14] Senior decision makers render decisions, including on danger opinions, pre‐removal risk assessments, and permanent residence applications when an individual is inadmissible and requests an exemption on humanitarian grounds. The cases that senior decision makers handle are complex, high profile, and taken from an aging inventory. Over time, if the cases are not decided, they create increasing legal risks for the IRCC, for example, mandamus applications and abuse-of-authority allegations in processing cases.

[15] As of the staffing process at issue and since January 2013, the complainant was a litigation analyst in the CMB. Her career goal was to become a senior decision maker. She previously worked as an immigration officer at the Dorval port of entry and as a hearings officer for the CBSA in Montréal. She worked with the appointee for one year. Before working as a litigation analyst, the complainant was an analyst in the CMB’s Danger Unit and was responsible for preparing reports and analyses on removal risks, which senior decision makers use when performing their duties.

[16] Julie Remillard (“the delegated manager” or “the manager”) became the ICD’s director in summer 2017. She was the manager responsible for the staffing process at issue. She was the ICD’s director until February 2021.

[17] In 2016, an advertised process was carried out to staff senior decision‐maker positions. In September 2017, indeterminate appointments were made, and a pool was created. For personal reasons, the complainant did not apply. Therefore, she was not in the pool.

[18] In late 2017, a senior decision‐maker position was still vacant. The ICD’s salary budget did not include permanent funding for that position. The delegated manager stated that without permanent funding, she could not consider staffing the position indeterminately. However, she did have sufficient temporary funding to make a 12-month term appointment.

[19] The manager testified that she intended to rework the ICD’s salary budget to provide permanent funding for the position in question, which would then have allowed her to initiate an advertised process for an indeterminate appointment. However, it would have taken considerable time, and the ICD had an immediate operational need that required staffing the position on a term basis in the interim. The delegated manager said that after determining that an indeterminate appointment could not be made, the options available to her at that time were to make an acting appointment of 4 months less 1 day or of 12 months. She chose a 12-month appointment to provide greater stability to the decision‐maker team and to allow the person who would be appointed to contribute as much as possible to the team’s work.

[20] In early December 2017, the complainant learned from a colleague that management intended to staff the vacant senior decision‐maker position. She emailed the delegated manager to express her interest in an assignment to the position. The email, which included her résumé, outlined her career history, including positions that she held and knowledge and experience that she gained at the IRCC and the CBSA as a litigation analyst, an analyst in the Danger Unit, a hearings officer before the Immigration and Refugee Board of Canada’s (IRB) Immigration Division and Immigration Appeal Division, an immigration officer, and a port-of-entry immigration officer.

[21] The email remained unanswered. The delegated manager testified that she often received notices of interest from employees. She did not recall receiving or reading the complainant’s email or viewing her résumé. The first interaction with the complainant that she recalled was an informal discussion after the appointee’s notice of appointment was published.

[22] The CMB had a list to which employees who were interested in one or more short-term assignments could ask to have their names added, to indicate their interest. The list was maintained as part of the department’s commitment to employee learning and development. Among other things, the list included the name of the employee who expressed interest in an assignment, his or her position group and level, and the position in which he or she wished to express interest. In May 2018, the complainant asked to have her name added to the list to show her interest in pursuing an assignment as a senior decision maker. A copy of the list was entered into evidence. It contained a total of nine employees who had expressed interest in a senior decision-maker position, including the complainant.

[23] In her testimony, the complainant acknowledged that the list was not of candidates who were assessed and deemed qualified. No steps were taken to validate the listed individuals’ qualifications. The delegated manager testified that she knew about the list before and during the staffing process at issue. However, she did not consult it, which she argued she was not obligated to do. She said that she never consulted it before making an appointment.

[24] On a date that was not established in evidence, the manager contacted the one candidate who was still in the pool that was created from the advertised process in 2016. She wanted to gauge that person’s interest in a 12-month acting appointment to a senior decision‐maker position. The candidate was uninterested in the position because it was not an indeterminate appointment.

[25] She testified that after that candidate refused, she thought of the appointee and considered offering her a term appointment through a secondment, meaning an appointment from a non-advertised appointment process. She testified that had she not known the appointee and her work history, she might not have sought her candidacy.

[26] In early 2018, the appointee worked as a hearings officer at the CBSA in Montréal. She and the delegated manager were friends and at one time had worked together. They met in 1998, on the delegated manager’s first day in the federal public service. They worked together as immigration officers in Montréal, and later, they both worked at the Dorval port of entry. In the years that followed, they pursued different career paths but always stayed in touch. They saw each other from time to time while the delegated manager was in the country, between overseas assignments, and as their workloads allowed. Describing the frequency of their get-togethers, the manager said that they saw each other two or three times between 2003 and 2007 and “[translation] several times” between 2007 and 2012. After 2014, they would get together when the delegated manager was in Canada and when they could.

[27] The appointee did not express interest in a senior decision‐maker position at the IRCC. The manager testified that she thought to offer the appointee an acting appointment because she knew the appointee’s skills and qualifications. In the manager’s opinion, the appointee had transferable skills and experience applying the same sections of the Immigration and Refugee Protection Act (S.C. 2001, c. 27; “IRPA”) that senior decision makers apply, namely, ss. 34 to 37. She also saw an opportunity to strengthen the relationship between the IRCC and the CBSA and to address a misunderstanding within the ICD about the CBSA’s mandate in immigration matters. In her opinion, hiring a candidate who had current knowledge of the CBSA’s culture and issues and a network of CBSA contacts could have both brought in a senior decision maker to help reduce the case inventory and demystified how the CBSA operates.

[28] The manager contacted the appointee to gauge her interest in a secondment. After confirming that the appointee was interested, she contacted the appointee’s supervisor to obtain consent for a secondment, which was given.

[29] The order in which the manager took steps to validate the appointee’s skills, knowledge, experience, and abilities is unknown. Known is that she interviewed the appointee informally by phone and then contacted her supervisor, to check references. It was unclear if the interview and reference check took place as part of the conversations described in the last paragraph or if an additional step was taken. No other IRCC manager or employee was involved in the interview or reference check.

[30] The manager said that she relied on her knowledge of the appointee, among other things, to assess her candidacy. The appointee’s résumé and the information that the manager gathered in the informal interview and the reference check were also used to prepare the narrative assessment and the articulation in support of the secondment. An advisor who worked with the delegated manager (“the advisor”) prepared the documents to support the appointment process. At least twice, she contacted the appointee for concrete examples to support the assessment of certain merit criteria.

[31] An existing statement of merit criteria was used. The delegated manager said that she concluded that the criteria were adequate given the organization’s needs and the duties of the position being staffed.

[32] Around June 14, 2018, the advisor prepared a first draft of the narrative assessment. That day, she also completed and signed a document entitled “Signed Statement of Persons Responsible for the Assessment” (“the Statement”). The signed document confirmed that the signatory had no personal connection to the appointee and was able to make an impartial decision. The delegated manager did not sign the document. The advisor also prepared an articulation of the secondment.

[33] The manager testified that it was in part because of their shared work experience and her personal and professional knowledge of the appointee’s skills and strengths that she was able to attest that the appointee met the merit criteria for the senior decision‐maker position. She said that the reference check confirmed her conclusion that the appointee was the right candidate for the position.

[34] As explained earlier, the narrative assessment was finalized in July 2018, including four experience criteria. As the complainant argued that only two experience criteria were not met, only they and the corresponding narrative descriptions have been reproduced, as follows:

[Translation]

Experience Criterion	Narrative Assessment
Experience providing strategic advice and recommendations to senior government officials (Director level and above).	As a hearings officer, [the appointee] drafts legal and factual recommendations for the department. Specifically, [she] is tasked with determining the position that the minister should take on inadmissibility cases. Once a position is chosen, the recommendation is made to the minister’s delegate and the director for a decision on whether to proceed.
Experience drafting decisions relating to the Immigration and Refugee Protection Act (IRPA) or the Citizenship Act, including assessing weight and credibility, drawing conclusions, adhering to the principles of natural justice, and interpreting legislation.	With 17 years’ experience in immigration, [the appointee] has developed solid expertise on the [IRPA], enabling her to draft legal and factual recommendations for the department.

 

[35] The following portions of the articulation of the secondment may be relevant to the experience criteria at issue:

[Translation]

...

[The appointee] has worked in the immigration field for 17 years. With her 2 years’ experience working at the IRCC (then the CIC) and 15 years with the [CBSA], she has developed extensive expertise on the [IRPA].

...

In her work, [she] has demonstrated that she is able to analyze information and make sound recommendations and decisions. She is able to capture important information and make decisions on these complex cases, taking into account recent case law and advice from the department.

[The appointee] has exceptional knowledge of the Act. She is recognized as an expert, and her colleagues, management, and different internal and external partners often look to her for her views on interpreting parts of the Act or case law. [She] is a reference in many respects, particularly on the direction that a file should take.

...

[She] meets all the education, experience, language, and security requirements. Based on her reference checks and our interactions with her, we are confident that she will be a productive member of the team ....

...

 

[36] In addition to outlining the appointee’s knowledge and skills, her résumé states that between 2003 and 2018, she gained professional experience that includes the following:

1) representing the Minister of Public Safety’s interests before the IRB;

2) researching and analyzing evidence for investigation files and detention reviews;

3) conducting examinations and cross-examinations; and

4) drafting legal and factual opinions for the CBSA.

 

[37] The work experience that she acquired between 2001 and 2003 while working for the IRCC is described as follows:

1) analyzing refugee claimant files;

2) intervening before the Refugee Protection Division;

3) assessing applications for admission to Canada;

4) drafting inadmissibility reports in accordance with applicable immigration legislation and regulations; and

5) exercising the authority of a minister’s delegate.

 

[38] The appointee’s work history, as the delegated manager described it in her testimony, was consistent with the résumé, including the experience gained and the periods during which it was gained.

[39] The manager testified that she received feedback from the appointee’s supervisor on her experience providing strategic advice and recommendations. She gave examples of situations in which the appointee provided recommendations and advice on important files. The delegated manager also testified that she relied on her knowledge of a hearings officer’s duties, which she said included making recommendations on how to handle a case in light of broader legal principles or issues.

[40] When the delegated manager testified about the assessment of the appointee’s experience drafting decisions, she referred to the appointee’s experience as an immigration officer. She said that she could attest that the appointee had the required experience as they had both been immigration officers, which is a role that involves making admissibility or inadmissibility decisions under the IRPA every day and that in some complex cases may require a thorough analysis of the facts. She stated that an immigration officer must be able to analyze and synthesize the information gathered and the arguments that led him or her to take a position under the IRPA. Detailed and clear notes supporting that decision must be entered into a computer system. She testified that drafting such notes was “[translation] a decision in itself”.

[41] She also said that because she had worked with the appointee, she knew that the appointee was able to make quick decisions and analyze and consolidate relevant information under the IRPA.

[42] For transparency, she stated that she felt the need to disclose her professional and personal relationship with the appointee as soon as she decided that the appointee was the right person for the position.

[43] Shortly before or when she asked the advisor to begin drafting the documents to support the appointment, the manager advised the CMB’s acting director general and the human resources advisor that she intended to proceed with a non-advertised process and offer an acting appointment to a former colleague who was also her friend. She testified that she asked them both if the friendship was an issue. They expressed no concerns. The acting director general did not testify at the hearing.

[44] The human resources advisor testified that she had no concerns about the staffing action. In her opinion, the delegated manager had the discretion to choose the appointee, who still had to meet all the necessary qualifications, including the merit criteria. From what she recalled of the process, the information on file was adequate.

[45] She testified that she did not know the extent of the delegated manager’s friendship with the appointee. She said that the manager informed her that they had worked together in the past. She was satisfied that the manager agreed to consult a departmental values-and-ethics representative before making the appointment and would implement a recommendation to avoid a possible conflict of interest resulting from the appointment.

[46] She also said that she was informed that the manager intended to choose a non‐advertised process because there was no permanent funding for the vacant position, and the only candidate in the pool had turned it down. According to the human resources advisor, it was sufficient for the staffing file and to justify the appointment that the manager consulted the pool, it was a term appointment, and the manager indicated a desire to create a partnership between the IRCC and the CBSA. The manager did not have to justify her choice of process in writing.

[47] On June 18, 2018, the delegated manager met with a departmental values-and-ethics representative to discuss her staffing intentions and seek advice. The representative did not testify at the hearing. According to the manager, the representative expressed no concerns about the proposed staffing action. The representative allegedly informed her that it was unreasonable to think that after working in immigration for over 20 years, she would not have formed friendships with former colleagues who might have the skills and experience required for a position in her division. The representative did make one recommendation to avoid a perception of favouritism while the appointee was in the position, namely, to have her report to the director general rather than the delegated manager.

[48] The recommendation, which was made verbally, was put in writing in an email to the delegated manager in early August 2018, at her request, after an informal discussion that she had with the complainant. The email contained a second recommendation to bring in the candidate for an interview with the director general if the staffing action in question was a promotion. No interview was conducted, and no evidence was presented as to whether the appointee’s acting appointment was a promotion for her.

[49] On August 18, 2018, a new CMB director general (“the director general”) was in the position. As she had done with the acting director general, the manager informed the new director general of her intention, the internal consultation process that was carried out, and the values-and-ethics representative’s recommendation. The director general agreed to take responsibility for the appointee’s performance agreement and evaluation, which she did for the acting period.

[50] The director general said that she was informed that the manager and the appointee were colleagues and friends. She did not know if they were close friends. She was not concerned about their friendship. In her opinion, over the course of a career, a manager will meet many competent and qualified people. Any friendship that might develop should not be a barrier to appointing a qualified person in the future. She did indicate that she was interested in the advice that Human Resources and the values-and-ethics representative provided.

[51] The director general said that she had no concerns about the staffing action because the delegated manager described to her the experience and skills that the appointee acquired at the CBSA, advised her that the appointee had the required experience and qualifications for the position, explained her goal of building a closer relationship with the CBSA, and had approval from Human Resources and the departmental values-and-ethics representative. The director general also testified that she had no concerns about using a non-advertised process in the circumstances, as the delegated manager said that she was unable to staff the position from the existing pool, the appointment was for 12 months, and she informed the director general that she intended to staff the position indeterminately through an advertised process after securing permanent funding.

[52] The director general said that her impression was that all necessary steps were taken to minimize a perception of personal favouritism.

[53] After receiving advice from the departmental values-and-ethics representative and updating the director general, the delegated manager submitted a staffing request for the appointee’s non-advertised appointment from July 3, 2018, to July 2, 2019.

[54] The complainant said that she was surprised when she was introduced to the appointee as the person appointed on an acting basis to the senior decision‐maker position. She commented that she found it surprising that the position was staffed by someone from another department who was a hearings officer. Although she did not know the details of the appointee’s career path since they worked together, what she did know of her background did not seem to include the experience required for the senior decision‐maker position, including experience drafting decisions and providing recommendations. Soon after, she learned that the appointee and the delegated manager were friends.

[55] On July 27, 2018, a notice of acting appointment was published.

[56] On August 6, 2018, the complainant made her complaint with the Board.

[57] The appointee worked as a senior decision maker from July 3, 2018, to July 2, 2019. She then resumed her CBSA duties in Montréal.

[58] After financial restructuring that secured permanent salary funding for the position, an advertised process was initiated in early 2019 to staff the senior decision‐maker position indeterminately. Neither the appointee nor the complainant applied.

IV. Summary of the arguments

A. For the complainant

1. The choice of process

[59] The complainant alleged that the choice of a non-advertised process was unfair in the circumstances and that it amounted to abuse of authority. After the only candidate in the pool expressed no interest in an acting appointment, no effort was made to inquire about the availabilities or interest of candidates in the CMB who could fill the acting position. She expressed interest in the position. Had the manager attempted to inquire about internal candidates, she would have found some with all the experience, skills, and abilities required for the position who could have been used to full effect right away.

[60] Contrary to past practice and the staffing principles that the ICD developed calling for employee engagement and development, management did not issue a notice-of-interest request inviting qualified internal candidates who were interested in the position to come forward. As soon as the delegated manager’s thoughts turned to the appointee, the choice to use a non‐advertised process was made, and no other acting staffing option was explored or considered. According to the complainant, the choice of process was made because of the candidate; in other words, so that the manager could appoint the appointee.

[61] She argued that it was difficult to understand why the manager chose to make a non-advertised appointment of a candidate from another department, working in another city, who did not express an interest in the position, when some CMB employees had all the experience, skills, and knowledge required for the position. Were the delegated manager truly motivated by an urgent and immediate need to staff the senior decision‐maker position, she should have prioritized those candidates, not one who did not possess many of the skills required for a senior decision‐maker position.

[62] She also challenged the respondent’s claim that the appointee’s appointment through a non-advertised process was part of an operational organizational strategy to strengthen ties with the CBSA. The manager’s intent was to appoint the appointee, not to appoint someone from the CBSA. That strategy came to the manager’s mind only after the choice was made to use a non-advertised appointment and the appointee was identified as a candidate.

[63] She acknowledged that the choice of process was at the delegated manager’s discretion but argued that the employer must still be able to provide a rationale for its choice. The respondent did not satisfactorily explain its choice of process other than stating that the delegated manager intended to carry out an advertised process later, after securing permanent funding. An intention is not an explanation or rationale for a choice of process.

[64] The IRCC’s Policy on Staffing Management states that the depth and breadth of documentation to support staffing decisions may vary but that it must take into account risks and mitigation strategies. The complainant stated that when a non-advertised process results in appointing the delegated manager’s personal friend, and the risk of perceived personal favouritism is high, a rationale is more important and was appropriate in the circumstances of this case. She argued that it was troubling that no one from the IRCC expressed concern about the non-advertised appointment of the delegated manager’s friend. In her opinion, more care should have been taken in the process, and a better rationale should have been provided to support the appointment.

2. The application of merit, and the personal-favouritism allegation

[65] The complainant also alleged that personal favouritism tainted the appointment. To support her arguments, she cited Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7, and Myskiw v. Commissioner of the Correctional Service of Canada, 2019 FPSLREB 107. Myskiw dealt with both personal favouritism and bias.

[66] She argued that the appointee was appointed to the position because she was the delegated manager’s friend. The appointee did not meet all the merit criteria. Neither the documents in the staffing file nor the testimony at the hearing demonstrated that she met all the merit criteria, in particular experience drafting decisions and providing strategic advice and recommendations.

[67] The staffing file does not make it clear how the manager could have determined that the appointee had the required experience drafting decisions. The manager relied on her recollection of the appointee’s work when they were colleagues 15 years before to claim at the hearing that the appointee met the decision drafting experience criterion. The manager never supervised her. The manager never had to review her work or evaluate her performance. It was not demonstrated how the respondent could claim that the decision drafting experience criterion was met when the appointment was made.

[68] The complainant also argued that the advisor’s signature on the Statement created a false impression that the appointee was assessed by an impartial person who was not her friend. However, the advisor was not involved in assessing her. Her role was limited to preparing documents to support the staffing action.

3. Corrective action

[69] The complainant requested as corrective action that the Board issue a declaration that there was abuse of authority in the application of merit and that personal favouritism tainted the appointment. She also requested a declaration that there was abuse of authority in the choice of a non-advertised process. The complainant cited Ayotte v. Deputy Minister of National Defence, 2010 PSST 16 (“Ayotte (2010)”), to support a request that the Board revoke the appointee’s appointment, although the appointee left the position some time ago. She also asked the Board to order any other action that it deemed appropriate or to make any recommendation that it deemed relevant in the circumstances.

B. For the respondent

1. The choice of process

[70] The respondent submitted that for the Board to find abuse of authority in the choice of a non-advertised process, the complainant must have submitted evidence that can lead the Board to find outrageous and unacceptable conduct. That conduct must be more than a mere error or omission. It must be so serious that it cannot be in good faith; for example, serious carelessness or recklessness (see Lavigne v. Canada (Justice), 2009 FC 684, Portree v. Deputy Head of Service Canada, 2006 PSST 14, and Tibbs v. Deputy Minister of National Defence, 2006 PSST 8).

[71] Neither the PSEA nor the case law expresses a preference for advertised or non‐advertised processes. The delegated manager had broad discretion in the choice of process, and her decision to use a non-advertised process was a thoughtful and reasonable decision in the circumstances. Using a non-advertised appointment process was consistent with the PSEA, and the evidence did not demonstrate any abuse of authority.

[72] The senior decision-maker position did not have permanent funding. Therefore, an indeterminate appointment could not be considered. The manager chose to use a 12-month acting appointment to provide stability for her team. First, she took steps to staff the position using the pool created in a previously advertised process, but that proved impossible.

[73] An advertised process would have taken considerable time, and there was an immediate need to staff the position because of a large workload and an aging case inventory. That is why the manager chose the most efficient staffing process in the circumstances, which was a non-advertised appointment process. Furthermore, the non-advertised appointment at issue aligned with her strategy to build a closer relationship between the IRCC and the CBSA, given the significant overlap in their mandates.

[74] The delegated manager’s actions after the appointment in dispute were also consistent with her testimony that the non-advertised process was not intended to offer an indeterminate position to the appointee but rather to staff the position until an advertised process could be initiated after securing permanent funding.

2. The personal-favouritism allegation

[75] The respondent submitted that the Board cannot find abuse of authority on the ground of personal favouritism unless the complainant was able to prove on a balance of probabilities that the appointment was based on factors other than merit; namely, the personal relationship between the delegated manager and appointee was the reason for the appointment in question (see Glasgow and Carlson-Needham v. Deputy Minister of National Defence, 2007 PSST 38). It also submitted that the evidence on file is insufficient to ground a finding of reasonable apprehension of bias as defined in Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369.

[76] According to the evidence, only after the sole candidate in the pool turned down the position did the delegated manager consider offering the acting appointment to the appointee. Although they were friends and had worked together, the evidence on file demonstrates that the appointment at issue was based on merit.

[77] The delegated manager was transparent. She proactively disclosed the friendship. She informed her director general, the human resources advisor, and the advisor tasked with preparing documents to support the staffing action. No one expressed concerns. She also consulted a departmental values-and-ethics representative before making the appointment and implemented a recommendation that was made to her. She took the necessary steps to avoid a perceived conflict of interest and to rebut any favouritism allegation.

[78] The respondent submitted that a friendship should not in itself prevent a manager from appointing a qualified person. Over the course of a long career, a manager will meet many skilled and qualified people who might be excellent candidates. He or she will also develop knowledge of the team’s objectives, needs, and directions, as well as the skills and knowledge required to meet operational needs. Using that knowledge, the manager should be able to draw on people that he or she has met during their professional development to staff positions with qualified candidates, especially when he or she proactively discloses any personal or professional relationship with a candidate.

[79] Because of their similar career paths and the manager’s knowledge of the appointee’s abilities and skills, she was able to identify the appointee as a candidate and knew that the acting appointment for the senior decision-maker position would meet the ICD’s needs and objectives. An interview was conducted, and references were checked. Everyone involved in the appointment process was satisfied that the appointment was based on merit.

[80] The respondent submitted that the existence of a list of candidates who expressed interest in acting appointments does not support the complainant’s argument that personal favouritism tainted the appointment. The list was not a pool of qualified people for the senior decision‐maker position or even a pool of people who were assessed in any way. No policy or directive obliged the delegated manager to consult the list. She did not have to staff the position with a person from it.

[81] According to the respondent, the complainant did not prove that personal favouritism was present. Moreover, it submitted that an informed bystander with knowledge of the delegated manager’s proactive actions and of all the circumstances of the case would have no reasonable apprehension of bias.

3. The application of merit

[82] A delegated manager has broad discretion to establish merit criteria and choose assessment methods to determine if a candidate meets the merit criteria and to choose the right person for the position (see Visca v. Deputy Minister of Justice, 2007 PSST 24). The complainant failed to demonstrate how the appointee did not meet the merit criteria. Therefore, she did not meet her burden.

[83] The manager found that existing merit criteria still reflected the position’s duties and organizational needs. She chose the assessment methods and determined that the appointee met the essential qualifications. She obtained and consulted the appointee’s résumé. She conducted an informal telephone interview and checked references. All the information that she gathered led her to determine that the candidate’s contribution would be considerable and that she met all the merit criteria.

[84] The respondent submitted that the staffing file contains a complete narrative assessment that demonstrates that the merit criteria were met. The file describes the appointee’s knowledge and experience. Furthermore, the delegated manager testified about the actions that she took to ensure that the merit criteria were met. The director general’s and human resources advisor’s uncontradicted testimonies stated that they were both satisfied that the appointee had the experience, skills, and knowledge set out in the merit criteria.

[85] At the hearing, the delegated manager explained why she believed that the experience criteria at issue (providing recommendations and drafting decisions) were met. The human resources advisor reviewed the narrative assessment and saw no problems. The director general also testified that she believed that all the merit criteria were met.

4. Corrective action

[86] The respondent submitted that the Board’s powers with respect to corrective action are limited by ss. 81 and 82 of the PSEA and are restricted to the staffing process at issue (see Canada (Attorney General) v. Cameron, 2009 FC 618). Were the Board to determine that there was abuse of authority, the respondent submitted that it should not order the revocation of the appointee’s appointment. It would have no practical effect, as the appointment was for a defined period, and the person has been out of the position since 2019.

V. Analysis

[87] The complainant made three abuse-of-authority allegations: abuse of authority in the choice of process, abuse of authority in the application of merit, and personal favouritism. At the hearing, the parties also cited case law on bias in staffing processes.

[88] Section 2(4) of the PSEA states that “abuse of authority” includes bad faith and personal favouritism. However, as the jurisprudence of the former Public Service Staffing Tribunal (“the Tribunal”) established, the wording of s. 2(4) of the PSEA must be interpreted broadly (see Kane v. Canada (Attorney General), 2011 FCA 19, which the Supreme Court of Canada upheld in Canada (Attorney General) v. Kane, 2012 SCC 64, on another ground). Abuse of authority can also include improper conduct and omissions, the nature and severity of which allow determining if there was abuse of authority.

[89] As stated in Tibbs and recently reiterated by the Federal Court of Appeal in Davidson v. Canada (Attorney General), 2021 FCA 226, abuse of authority requires wrongdoing that is inconsistent with Parliament’s intention when it delegated discretion in staffing processes. That said, evidence of improper intent is not required to find abuse of authority. A delegated manager acting on inadequate material or making an appointment without establishing that the appointee met each of the merit criteria may amount to abuse of authority even if it was unintentional (see Tibbs, at para. 73, and Rochon v. Deputy Minister of Fisheries and Oceans, 2011 PSST 7). An allegation that the respondent was biased is essentially one of bad faith and therefore abuse of authority (see Denny v. Deputy Minister of National Defence, 2009 PSST 29 at para. 122).

[90] The onus is on the complainant to prove abuse of authority on a balance of probabilities.

A. The abuse-of-authority allegation in the choice of process

[91] Section 33 of the PSEA gives the respondent the discretion to choose an advertised or non-advertised appointment process. The PSEA states no preference. Therefore, choosing a non-advertised appointment process is not in itself an abuse of authority (see Rozka v. Deputy Minister of Citizenship and Immigration Canada, 2007 PSST 46, and Jarvo v. Deputy Minister of National Defence, 2011 PSST 6). The PSEA also states that there is no requirement to consider more than one person (s. 30(4)).

[92] However, the discretion that s. 33 of the PSEA provides is not absolute. It must be exercised in accordance with the PSEA’s legislative purpose and with fair and transparent employment practices (see Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 7).

[93] Section 77(1)(b) of the PSEA provides the right to make an abuse-of-authority complaint on the ground that the delegated deputy head — in this case, the respondent — chose a non-advertised internal appointment process. The onus is on the complainant to prove on a balance of probabilities that the respondent’s decision to choose a non-advertised process amounted to abuse of authority (see Rozka).

[94] The complainant submitted that in the circumstances of this case, using a non-advertised process was an abuse of authority. According to her, personal favouritism tainted the choice of process. She argued that the delegated manager did not provide a written rationale for her choice of process. She also submitted that because of the process that was chosen, her application was not considered, even though she was qualified, expressed interest in the position, and had work experience comparable to the appointee’s.

[95] The manager provided no written rationale for her choice of process. However, according to the human resources advisor’s uncontradicted testimony, there was no departmental obligation to provide one. The IRCC’s Policy on Staffing Management and Guideline on Risk and Results-based Staffing Management provide that a delegated manager can present a written decision of the choice of process if he or she finds that the risks arising from that choice require one. In the circumstances of this case, a written rationale would have been desirable given that the choice of process led to appointing the delegated manager’s friend. However, in the IRCC, it is not a requirement. The lack of a written rationale is not in itself an abuse of authority.

[96] The manager testified at length about the factors that led to choosing a non-advertised process. She also communicated those factors to the complainant in an informal discussion. The human resources advisor also testified about the choice of process and related discussions.

[97] The manager’s explanation at the hearing was credible. In the circumstances, I find that the choice of a non-advertised process did not amount to abuse of authority. This choice was possible under the PSEA, supported by a clear rationale. In addition, it was an effective and efficient action within the discretion provided by the PSEA.

[98] The ICD had a large inventory of complex, old, and high-profile cases. The senior decision makers had a heavy workload. According to the delegated manager’s uncontradicted testimony, increasing delays in processing files carried legal risks for the IRCC, specifically possible abuse-of-authority allegations in processing cases, as well as a greater risk that some applicants would decide to file mandamus applications before the courts. She said that it was important to staff the senior decision-maker position as quickly as possible, to increase the pace of decisions being rendered on those cases.

[99] According to the manager’s uncontradicted testimony, her ultimate goal at all times was to use an advertised process to staff the senior decision-maker position indeterminately, which she eventually did.

[100] The lack of permanent funding for the position made an immediate indeterminate appointment impossible. The manager had to carry out financial restructuring within the directorate to staff it indeterminately. However, the restructuring would take time, and she had to act to meet the ICD’s operational needs. She had enough funding to make a 12-month acting appointment.

[101] First, she considered an acting appointment from a pool of candidates who qualified for a decision-maker position in an advertised process. After the only candidate in the pool expressed no interest in an acting appointment, the manager decided to use a non-advertised process.

[102] The complainant submitted that a desire to appoint the appointee to the senior decision-maker position was behind the choice of a non-advertised process; in other words, personal favouritism tainted the choice of process. However, this argument is inconsistent with the evidence that demonstrated that first, the manager elected to appoint a candidate from an existing pool. The choice of a non-advertised process was made after that individual turned down the appointment. Moreover, there is no indication that had it not been for the appointee’s candidacy, the delegated manager would have chosen an advertised process. In fact, all the evidence demonstrated that when it became clear that an appointment could not be made from the pool, a non-advertised process became the only staffing option that the manager deemed effective in the circumstances. I am satisfied that she would have chosen a non-advertised process even had the appointee not been interested in the senior decision-maker position.

[103] In her testimony, the complainant conceded that had the delegated manager considered her application based on her notice-of-interest email in December 2017 or on the fact that her name was on a list of employees who had expressed interest in an assignment, her acting appointment would also have been a non-advertised appointment.

[104] She would have liked to apply or to have been considered for the senior decision-maker position. She expressed her interest. However, the delegated manager had discretion in the choice of process. She was not required to consider more than one person. She was also not required to prioritize an IRCC employee. There is no indication that she abused this authority when she chose a non-advertised process.

B. The abuse-of-authority allegation in the application of merit

[105] The complainant submitted that there was abuse of authority in the application of merit. According to her, the manager appointed a person who did not meet all the merit criteria.

[106] An appointment is based on merit when the appointee meets the essential qualifications for the work to be performed, as established by the deputy head (see ss. 30(1) and (2) of the PSEA). Appointing a person who does not meet the essential qualifications is an abuse of authority (see Visca, at para. 36, and Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 44 at para. 38).

[107] The Board and the Tribunal concluded that abuse of authority exists when a deputy head relied on inadequate material and failed to adequately assess the merit criteria and thus did not meet its obligations under the PSEA (see Cameron v. Deputy Head of Service Canada, 2008 PSST 16). Abuse of authority in the application of merit is also found when there is no clear evidence that an appointee was assessed against the position’s merit criteria (see Robert v. Deputy Minister of Citizenship and Immigration, 2008 PSST 24).

[108] In Ayotte v. Deputy Minister of National Defence, 2009 PSST 21 (“Ayotte (2009)”), the Tribunal found that the respondent abused its authority because it relied on inadequate material and failed to ensure that the appointee had all the essential qualifications before making the appointment. The Tribunal stated as follows:

[119] ... The respondent is responsible for conducting appointment processes. It holds all the information relating to such processes. It is therefore in a position to present evidence that can explain how an appointment process was conducted.

 

[109] A candidate’s assessment can take into account the assessor’s personal knowledge, in this case that of the delegated manager. This is an accepted assessment method (see Visca). However, the assessment must still demonstrate that all the merit criteria were met when the appointment was made.

[110] The respondent must justify its staffing decision to ensure transparency. The narrative assessment must reflect why the manager believed that the appointee met the merit criteria when the appointment was made. It is not enough for a manager to declare that all the criteria were met, with no supporting evidence.

[111] The delegated manager had to assess the appointee against each merit criterion. An appointment is based on merit if all the criteria were met as of the appointment.

[112] In light of the evidence adduced, I conclude that the respondent’s assessment of merit did not reflect a careful examination of each merit criterion and that the appointee failed to meet one of the position’s merit criteria, namely, experience drafting decisions. This criterion was examined based on a vague description and a disproportionately generous interpretation of the candidate’s experience.

[113] For each merit criterion, the narrative assessment briefly explains how the respondent was able to demonstrate that the appointee met the merit criterion. The complainant disputed only the experience criteria of decision drafting and providing advice and recommendations.

[114] The description of the appointee’s experience providing strategic advice and recommendations to senior officials is brief but contains enough information to support the delegated manager’s determination that the appointee met this essential qualification. The narrative assessment indicates that as a hearings officer, she drafted factual and legal recommendations for the department, notably by determining “[translation] ... the position that the minister should take on inadmissibility files ...”.

[115] The delegated manager testified that she discussed that experience criterion with the appointee and with the appointee’s supervisor during the reference check. The supervisor allegedly gave at least one example to demonstrate that the appointee provided her with recommendations for action on files under her responsibility.

[116] I am of the view that the respondent adequately assessed the experience criterion of providing advice and recommendations. The file demonstrates that the appointee had the experience required as of the appointment.

[117] However, the opposite is true of the second experience criterion at issue, drafting decisions.

[118] It is important to keep in mind that the appointee had to have experience drafting decisions relating to the IRPA or the Citizenship Act (R.S.C., 1985, c. C-29), including the following:

1) assessing weight and credibility;

2) drawing conclusions;

3) adhering to the principles of natural justice; and

4) interpreting legislation.

 

[119] The narrative assessment makes no mention of drafting decisions, let alone any requiring drawing conclusions, assessing weight and credibility, and adhering to the principles of natural justice. It provides only the following:

[Translation]

With 17 years’ experience in immigration, [the appointee] has developed solid expertise on the [IRPA], enabling her to draft legal and factual recommendations for the department.

 

[120] That brief statement reflects her experience providing recommendations. It has nothing to do with drafting decisions.

[121] The statement is inadequate. There is no basis for concluding that the appointee had the necessary experience. Decisions are not mentioned. No concrete examples are given that would illustrate experience drafting decisions including drawing conclusions, interpreting legislation, assessing weight and credibility, or again adhering to the principles of natural justice.

[122] At least twice, the appointee was asked to submit concrete examples to support the narrative assessment of merit criteria. If she had more precise and relevant examples that could have unequivocally demonstrated that she had experience drafting decisions as described in the statement of merit criteria, she would have provided them.

[123] Ayotte (2009) reminds that the respondent holds all the information relating to the process that it conducted. It is in a position to present evidence that can demonstrate how it ensured that it adequately assessed the merit criteria. If it had examples or information to further support the assessment of this merit criterion, it would have included them.

[124] The narrative assessment is inadequate on this criterion and does not demonstrate that the decision drafting experience criterion was met when the appointment was made. What about the other documents in the staffing file?

[125] The appointee’s résumé makes no mention of drafting decisions. The only reference to drafting relates to experience acquired 15 years earlier (between 2001 and 2003) drafting inadmissibility reports. There is no indication that drafting such reports might be equivalent to drafting decisions as described in the statement of merit criteria.

[126] The articulation of the secondment is not much more helpful or specific in terms of experience drafting decisions. It mentions the appointee’s ability to make decisions taking into account the recent case law and advice from the department, i.e., the CBSA. It states that she met all the experience requirements. Without an explanation or supporting evidence, this statement has very little value.

[127] Even taking into account the narrative assessment, the articulation of the secondment, the appointee’s résumé, and the delegated manager’s testimony about the steps she took to validate the experience criteria with the appointee and her supervisor, I still conclude that the candidate assessment is clearly inadequate and that it does not demonstrate that the appointee had the necessary experience.

[128] In relation to that experience criterion, the manager testified that she relied on her personal knowledge of the appointee’s experience making decisions and drafting notes in a computer system when they were immigration officers at a port of entry between 2001 and 2003. According to the manager, drafting those notes required analyzing and synthesizing information as well as drafting arguments for the immigration officer to take a position under the IRPA. She said that drafting such notes was “[translation] a decision in itself”. She also referred to the appointee’s experience drafting notes as a hearings officer.

[129] When she described the reference check and her informal discussion with the appointee, she did not state that she asked for or received examples or explanations demonstrating that the appointee had experience drafting decisions as described in the statement of merit criteria. However, she testified that she did so for the experience criterion of providing advice and recommendations.

[130] No evidence or arguments were presented on the interpretation that should be given to the decision drafting experience criterion. Without any evidence to suggest that the respondent’s use of the phrase “[translation] drafting decisions” meant drafting some form of writing (notes, report, or other) that reflects a position, I must interpret the phrase “[translation] drafting decisions” in its usual sense, bearing in mind the nature of the senior decision maker’s role and the details in the statement of merit criteria as to the nature of the drafting task.

[131] Senior decision makers render decisions on complex cases with major security, mobility, and freedom issues. Presumably for that reason, the experience criterion also specifies that the necessary experience must be in drafting decisions including assessing weight and credibility, drawing conclusions, adhering to the principles of natural justice, and interpreting the IRPA or the Citizenship Act. Drafting decisions of that nature requires a high level of thinking and analysis as well as a higher degree of formality than expected when drafting notes in a computer system.

[132] In making this distinction between drafting decisions and drafting notes to support decision making, I do not want to diminish the importance of the immigration officers’ role and work at ports of entry. However, the evidentiary file as presented to the Board does not allow me to conclude that an immigration officer drafting notes at a port of entry is equivalent to drafting decisions including assessing weight and credibility, drawing conclusions, adhering to the principles of natural justice, and interpreting the IRPA or the Citizenship Act.

[133] The respondent relied on inadequate material and failed to adequately assess all the merit criteria.

[134] Several times in her testimony, while discussing the candidate assessment, the manager referred to “[translation] transferable” skills and knowledge that can be acquired once on the job. Although those comments did not pertain to the experience criteria at issue in this case and are not troubling in themselves, they add to her testimony — without further explanation or rationale — that drafting notes in a computer system is equivalent to drafting decisions including assessing weight and credibility, drawing conclusions, adhering to the principles of natural justice, and interpreting the IRPA or the Citizenship Act. This does not reflect the level of rigour that the PSEA requires in assessing that merit criterion.

[135] At the hearing, when it defended its process, the respondent greatly emphasized that other people involved in the appointment process, specifically the director general and the human resources advisor, were satisfied that the appointee met all the essential qualifications as of the appointment, including the necessary experience.

[136] The fact that those people had no questions or concerns does not erase or temper the lack of evidence that the appointee had the necessary experience. In addition, the human resources advisor testified that she suggested changes to the narrative assessment where she felt that a criterion’s assessment needed improvement. She did not recommend anything for the decision drafting experience criterion, which is hardly reassuring given the extent to which that criterion’s assessment is inadequate.

[137] Lastly, the delegated manager alone participated in the informal interview with the appointee and checked references. She informed the director general and the human resources advisor that she determined that the appointee met all the merit criteria. When the director general said that she believed that the appointee met all the essential qualifications of the position, she said that she drew that conclusion based on the candidate description from the manager. She trusted what the manager said. The human resources advisor did not remember the content of the narrative assessment in question. She testified that she recalled that all the merit criteria were met but could not say more.

[138] The respondent relied on inadequate material, failed to adequately assess all the merit criteria, and appointed a person who did not meet all the essential qualifications of the position. This is an abuse of authority.

C. The personal-favouritism allegation

[139] The complainant argued that personal favouritism tainted the choice of process and the appointment. As I explained earlier, the evidence does not support a finding that the choice of a non-advertised process was made based on personal favouritism. For the reasons that follow, I cannot conclude that personal favouritism played a role in the merit assessment.

[140] Personal favouritism is one of the most serious forms of abuse of authority (see Glasgow). It is important to specify that personal favouritism, not any other type of favouritism, amounts to abuse of authority.

[141] The case law has recognized examples of personal favouritism, including selecting a person based on undue personal interests, as a personal favour, or to gain personal favour with someone (see Glasgow, at para. 41). Changing a statement of merit criteria based on a candidate’s profile and modifying the essential qualifications of a position to appoint an employee without considering the actual requirements of the position are also examples of personal favouritism (Ayotte (2009)). Appointing a person who does not meet the essential requirements of the position may also amount to personal favouritism when the appointment is made to reward the appointee (see Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 35 at para. 185 (“Beyak (2009 PSST 35)”)).

[142] From that case law, I note that to date, the Board and Tribunal have concluded that personal favouritism exists when undue personal interests, such as a personal relationship between the person selecting and the appointee, were the reason for appointing the person (see Glasgow, at para. 41, and Drozdowski v. Deputy Head (Department of Public Works and Government Services Canada), 2016 PSLREB 33). It also includes appointments that are made as a personal favour or reward or to gain personal favour with someone (see Glasgow, at para. 41, and Beyak (2009 PSST 35)).

[143] Evidence of personal favouritism can be direct, but “... it will often be a question of circumstantial evidence where some action, comments or events prior to, and during, the appointment process will have to be reviewed” (see Glasgow, at para. 44).

[144] The complainant argued that hiring a close friend and failing to consider other candidates amounts to personal favouritism. The onus was on her to prove on a balance of probabilities that the appointee was appointed because of personal favouritism, based on a friendship rather than merit (see Carlson-Needham, at para. 54).

[145] The respondent admitted that the manager and appointee were friends. It did not dispute that the manager thought of the appointee because they were close friends and had worked together. However, it argued that their personal and professional relationship led the manager to determine that the appointee met the essential qualifications. According to it, the appointment was based on merit.

[146] The fact that the delegated manager and the appointee were friends and had worked together does not in itself amount to personal favouritism.

[147] During his or her career, a manager might become friends with former colleagues who, one day, could be worthy candidates for appointment on his or her team. I cannot conclude that any appointment of a friend or former colleague would amount to personal favouritism. Such an appointment can be based on merit if the selected candidate meets all the merit criteria. However, any manager who considers appointing a close friend must be more diligent and transparent in the application of merit.

[148] In this case, the manager admitted that were it not for their friendship and overlapping career paths, she likely would not have thought of the appointee for a senior decision-maker position. She thought of the appointee because she knew about the appointee’s work history and skills. However, she credibly testified that she believed that the appointee could positively contribute to the ICD’s work and address a misunderstanding within the directorate about the CBSA’s role. She testified sincerely about her belief that the appointee’s work history would enable the appointee to perform a senior decision maker’s tasks. Besides the two experience criteria at issue, it was uncontested that the appointee had knowledge relevant to the position and many years of experience in immigration, at both the IRCC and the CBSA.

[149] There was no indication that the appointment amounted to a reward or that it was a promotion. No evidence was presented to ground a finding that the appointee received a financial or other benefit because of the appointment. The manager testified that the appointee did not receive a travel allowance or the reimbursement of moving costs as the position in question was located in Ottawa and she lived in Montréal.

[150] Moreover, the manager did not try to hide her friendship with the appointee. She disclosed it proactively. She informed the human resources advisor, the acting director general, and the director general of the friendship before making the appointment. She consulted a departmental values-and-ethics representative and implemented a recommendation that that person made.

[151] The facts of this case differ from situations in which the Board and Tribunal found personal favouritism. Unlike the circumstances described in Beyak (2009 PSST 35), Ayotte (2009), and Martin v. Deputy Minister of National Defence, 2010 PSST 19, there is no evidence in this case that the appointment process was modified or manipulated to ensure an appointment as a reward or personal favour.

[152] It was uncontested that the manager thought of the appointee because they are friends. However, because the manager credibly testified about her belief that the appointee’s work history, abilities, and skills made her “[translation] the right person” for the position, I cannot conclude that the friendship was the reason for the appointment or that the appointment was made as a personal favour or reward (see Glasgow, at para. 41).

[153] The complainant did not prove on a balance of probabilities that personal favouritism tainted the appointment as defined in the case law.

[154] However, my conclusion does not mean that I believe that the manager and the appointee’s friendship is irrelevant or unimportant.

[155] According to the respondent, whether the Board bases its analysis on personal favouritism and on Glasgow and Carlson-Needham or on bias as defined in Committee for Justice and Liberty, the evidence does not ground a finding of abuse of authority. I disagree. The complainant proved on a balance of probabilities that there was a reasonable apprehension of bias in favour of the appointee.

[156] It is important to distinguish a personal-favouritism allegation from a bias allegation. Both can lead to a finding of abuse of authority in an appointment process, but the analysis that the Board must perform is not the same. There is a specific criterion for bias allegations.

[157] In Committee for Justice and Liberty, at 394, the Supreme Court of Canada defines this criterion as follows:

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude....”

 

[158] The Board must determine if a relatively informed bystander could reasonably perceive bias on the part of the respondent. If so, the Board can conclude that abuse of authority exists (see Drozdowski, at para. 26). As the Tribunal stated in Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10 at para. 72, it is not enough to suspect or assume bias; it must be real, likely, or reasonably evident.

[159] I am of the opinion that a relatively informed bystander who is aware of all the circumstances of this case could reasonably perceive bias on the part of the respondent. I have drawn this conclusion based on the following.

[160] The manager and the appointee were friends and had worked together. As explained earlier, the staffing file demonstrates that the appointee did not meet all the merit criteria when the appointment was made.

[161] Non-advertised processes were not unusual in the directorate. However, according to the complainant’s uncontradicted testimony, it was unusual for an appointee to come from another department.

[162] The delegated manager alone assessed the appointee’s candidacy. Although she disclosed their friendship and sought advice from a values-and-ethics representative, she did not take any other steps to involve a neutral third party in the assessment.

[163] Furthermore, the manager did not sign the Statement, which confirms that the signatory is able to make an impartial decision in the appointment process. Only the advisor signed the document, and she did not participate in the assessment but merely prepared documents to support the staffing action.

[164] The director general trusted what the manager said to conclude that the appointee met all the essential qualifications of the position. Therefore, her participation in the appointment process did not diminish a reasonable apprehension of bias. The fact that the director general, the human resources advisor, and the departmental values-and-ethics representative had no questions or concerns about the friendship would not reassure a relatively informed bystander, especially given the lack of evidence that the appointee met one of the experience criteria.

[165] The fact that the manager took steps to minimize an apprehension of bias once the appointee was hired does not diminish the reasonable apprehension of bias relating to the appointment process.

[166] Overall, I am of the opinion that the manager and the appointee’s friendship contributed to bias in the appointee’s favour and led the manager to disproportionately generously interpret the appointee’s experience with respect to one of the merit criteria. I am convinced that were it not for their friendship, she would have examined the merit criteria more carefully and thoroughly before making an appointment.

[167] Furthermore, the manager’s testimony displayed clear enthusiasm for the appointee’s candidacy. The appointee’s work history and skills were of interest, but the manager seemed most excited about the opportunity to tap into the appointee’s knowledge of the CBSA and networks there and elsewhere. In her, the manager saw a resource that could demystify the CBSA’s work and role, address a misunderstanding within the ICD about the CBSA’s mandate, and act as an intermediary to facilitate interdepartmental exchanges.

[168] The manager described the benefits that could have been derived from the appointment when she testified about an operational organizational strategy to develop a partnership with the CBSA.

[169] In its response to the allegations, the respondent stated that that strategy targeted the CBSA in Montréal, where the appointee worked at the time. To say the least, it is curious that a strategy to facilitate interdepartmental exchanges would be so specific as to target the geographic area where the appointee worked. Furthermore, there is no indication that a strategy, formal or informal, was in place or in development before the manager decided to consider the appointee for the position. No evidence was submitted to demonstrate that the manager made efforts to partner with the CBSA after the appointee left.

[170] I am convinced that the strategy was developed after the appointee was identified as a candidate. I am of the opinion that the “strategy” reflects the manager’s enthusiasm for the appointee’s candidacy.

[171] In light of the foregoing, I find that a relatively informed bystander could reasonably perceive bias on the part of the respondent.

D. Corrective action

[172] After finding abuse of authority in the application of merit and a reasonable apprehension of bias, the Board must decide the appropriate corrective action in the circumstances. Its authority to order corrective action is set out in s. 81(1) of the PSEA.

[173] The complainant asked the Board to issue a declaration that the respondent abused its authority, to order the revocation of the appointee’s appointment, and to order any other action it deemed appropriate, notably, a recommendation that IRCC delegated managers and human resources specialists be required to complete training on the PSEA’s requirements.

[174] Under s. 81(1) of the PSEA, the Board may order the respondent to revoke the appointment if it is warranted in the circumstances. There is no requirement for the person to still hold the position (see Ayotte (2010)). The Board may also make recommendations to avoid the repetition of the situation that led to the abuse of authority (see Ayotte (2010), at para. 45).

[175] In this case, the appointee was given a 12-month acting appointment, which ended in July 2019. She left the IRCC and resumed her CBSA duties. Also in 2019, the IRCC conducted an advertised appointment process for an indeterminate senior decision maker. Another person now holds the position.

[176] Given the circumstances, I find that revoking the appointment is not an appropriate corrective action.

[177] A recommendation that the respondent’s employees who were involved in this process be required to complete staffing training would be of little use in the circumstances. The delegated manager no longer holds the ICD director position, the CMB director general is now retired, and the human resources advisor left the IRCC.

[178] I find that a declaration that the respondent abused its authority is an appropriate corrective action in the circumstances. Protection against abuse of authority is a central element of the PSEA, which is a value that that Act seeks to protect. The Board’s authorities with respect to corrective action serve as a tool to convey the importance of adhering to and protecting its values. In the circumstances of this case, a declaration will convey this message.

VI. Conclusion

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

(The Order appears on the next page)

VII. Order

[180] The complaint is allowed.

[181] I declare that abuse of authority occurred in the appointment, which gave rise to a 12-month period during which the PM-06 senior decision-maker position was held on an acting basis by a person who did not meet all the merit criteria.

August 16, 2022.

FPSLREB Translation

Amélie Lavictoire,

a panel of the Federal Public Sector

Labour Relations and Employment Board