Date: 20220926

File: 771-02-39477

 

Citation: 2022 FPSLREB 79

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

 

MYRIAM MASSABKI

Complainant

 

and

 

DEPUTY HEAD

(Department of Foreign Affairs, Trade and Development)

 

Respondent

and

OTHER PARTIES

Indexed as

Massabki v. Deputy Head (Department of Foreign Affairs, Trade and Development)

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

Before: Guy Grégoire, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Herself

For the Respondent: Patrick Turcot, counsel

For the Public Service Commission: Alain Jutras, senior analyst

Heard by videoconference,

May 10, 11, and 12, 2022.

[FPSLREB Translation]

 

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Introduction

[1] In November 2018, the deputy head of the Department of Foreign Affairs, Trade and Development (“the respondent”), also known as Global Affairs Canada (GAC), made an indeterminate appointment to the position of Director, Trade Commissioner Service Planning, Programs, and Promotion, at the EX-01 group and level. The appointment followed the process numbered 18-EXT-IA-GP-1020123 at GAC’s International Business Development, Investment and Innovation Branch (Ottawa).

[2] On December 5, 2018, Myriam Massabki (“the complainant”) made a complaint, alleging that the respondent abused its authority in the application of merit by demonstrating personal favouritism toward the appointee. She also alleged that it abused its authority in the choice of appointment process by demonstrating bad faith and bias. The complaint is based on ss. 77(1)(a) and (b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the Act”).

[3] For the following reasons, I allow the complaint and find that on the preponderance of the evidence, the respondent violated the Act by abusing its authority when it assessed the complainant and in its choice of process.

[4] Note that the Public Service Commission (PSC) did not appear at the hearing but that it submitted its written, general, and specific arguments about its appointment policy.

II. Objection under the Browne and Dunn rule

[5] At the start of the hearing, at my invitation, the complainant and the respondent’s representative made their opening statements. After hearing the complainant, the respondent informed me that it would raise an objection to procedural fairness if she violated the rule set out in Browne v. Dunn (1894), 6 R. 67 (H.L.)(“Browne and Dunn”).

[6] After the opening statements, the complainant testified. She was self-represented. She had many documents that she did not refer to during her testimony. On the respondent’s first question under cross-examination, she wanted to refer to those documents, to discuss another appointment process that she wanted to introduce as evidence. At that point, the respondent objected, invoking the Browne and Dunn rule.

[7] To support its objection, the respondent argued that the complainant had concluded her evidence and that she could no longer return to her testimony because it was complete. When it raised its objection, and in its closing statement, the respondent argued that allowing her to refer to the documents and to a second staffing process would be a serious breach of procedural fairness, as described by the Browne and Dunn rule, because she did not introduce the documents when she testified. She made no argument against the objection.

[8] At the hearing, I decided to dismiss the objection and to suspend the respondent’s cross-examination, to allow the complainant to resume her main testimony on the basis of the documentary evidence that she brought with her and that she intended to file before me.

[9] The Browne and Dunn rule provides that if a party intends to question the testimony of a witness for the opposing party, it must question the witness about the particular facts and allow the witness to address those facts, as alleged (see Stene v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 36 at para. 140).

[10] Section 27 of the Public Service Staffing Complaints Regulations (SOR/2006-6) states that the Board is master of its proceedings and that it may decide the order and manner in which the evidence and arguments will be presented.

[11] In Pintea v. Johns, 2017 SCC 23, the Supreme Court of Canada stated at paragraph 4 that it endorses “… the Statement of Principles on Self-represented Litigants and Accused Persons (2006) … established by the Canadian Judicial Council.” The Canadian Judicial Council clearly set out in section B the principle that everyone, whether or not represented, should have equal access to the justice system. At paragraph 4, it stated the following:

When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

(a) explain the process;

(b) inquire whether both parties understand the process and the procedure;

(c) make referrals to agencies able to assist the litigant in the preparation of the case;

(d) provide information about the law and evidentiary requirements;

(e) modify the traditional order of taking evidence; and

(f) question witnesses.

[Emphasis added]

 

[12] In addition, the principles that guide administrative law proceedings recognize their informal nature, while complying with the rules of natural justice, which include procedural fairness.

[13] In that respect, it has long been recognized that a court is the master of its proceedings and that it may adapt the normal procedure to allow one of the parties to adduce evidence that it would like to introduce, particularly when the complainant is not represented by counsel. In this case, the complainant appeared before the Federal Public Sector Labour Relations and Employment Board (“the Board”) with many documents, and it was clear that she wanted to use them to defend her complaint. I found that it would have been abusive on my part to deny her the opportunity to introduce them, knowing full well that she filed them with the Board’s registry for that purpose alone on May 2, 2022, and that the respondent received a copy of them. Therefore, the respondent knew that she would support her complaint before the Board with documentary evidence. I found that the respondent could not then claim surprise at the documents’ presentation.

[14] Furthermore, the respondent’s objection was based on the first question of its cross-examination, before it was interrupted. The complainant referred to another staffing process that she had not yet referred to.

[15] In her December 2018 complaint with the Board, the complainant informed management that among other things, she would not submit to the “[translation] masquerade of a process” for staffing were the purpose to remove her from the position. The statement gave rise to the allegation of abuse of authority in the choice of appointment process. I find that since the complaint was made in December 2018, the respondent could have sought clarification from her as to the nature of the evidence on which she intended to support her allegation. It did not. I note that it was represented by counsel and that it is a party accustomed to quasi-judicial proceedings.

[16] If, in fact, the respondent was so surprised by the reference to another appointment process relied on to support the complaint, there were remedies to address it, the first being to request that the hearing be postponed, to enable it to develop a rebuttal. It did not. As discussed later in this decision, it called as a witness the director general who was in office during the “other” staffing process and who would have had ample opportunity to refute the evidence and remedy the defect it claimed.

[17] Therefore, I find that the respondent suffered no adverse effect from evidence being introduced about another staffing process, as the complainant intended to do, or from the fact of allowing her to complete her testimony by introducing the documentary evidence that she had filed with the Board’s registry.

[18] Thus, the objection was dismissed.

III. Summary of the facts

[19] In 2016, the complainant began a secondment at her same EX-01 group and level as the director of Trade Commissioner Service promotion at GAC in Ottawa in a rotational position at the EX-01 group and level. She was released from her substantive position at the Privy Council Office (PCO). The secondment ended when the process completed and the appointee was appointed in November 2018.

[20] In August 2018, the director general of GAC’s International Trade Operations initiated the noted advertised staffing process. The complainant, who was in the seconded position, participated in the process, and her application was dismissed because she failed to demonstrate her “… ability to mobilize people, to collaborate with partners and stakeholders …”. She then participated in an informal discussion with her director general, who then returned her to the pool of qualified candidates. Ultimately, she was not appointed, which is why the complaint was made.

A. For the complainant

[21] In her testimony, the complainant stated that she was in the position when the staffing process was initiated. She adduced her performance assessments in evidence to demonstrate that they were favourable and that they showed that she did a good job.

[22] She alleged that the Assistant Deputy Minister (ADM) was biased against her application and wanted to remove her from the position. She also alleged that an abuse of authority occurred in the choice of appointment process.

[23] The complainant stated that in 2016, she accepted a secondment at her level (EX-01) to a rotational position at GAC in Ottawa. She expected to be deployed into the position during the secondment. That expectation was based on the statements of her director general and management in 2017. However, such a deployment could not normally be made as the destination position was rotational; a special deployment was required.

[24] An email chain that began on June 5, 2017, and that was initiated by the Human Resources branch with the then director general, explains the procedure to follow in this way:

[Translation]

…

Other than HR’s request to proceed with staffing to appoint Myriam Massabki, a follow-up to the classification indicates that they have not yet received the request to create the ‘Special Deployment’ position. I presume that you felt that the staffing request could complete it all; however, since position 00000588 is rotational, she cannot be appointed to it as discussed in the past, which is why the only option is to move ahead with the special deployment, although the position must be created.

Please send an ‘HR Action’ request to classification to create this position. Mr. … classification advisor, cc’ed on this, can help you create the temporary position.

 

[25] That email was immediately followed by other emails from the director general to several people that discussed the procedure to follow. The email chain’s subject was the “[translation] Creation of the position for the Special Deployment of Myriam Massabki”. In the emails, after the one dated June 15, 2017, a two-page, undated document was included, the text of which begins as follows: “You will find below a justification for the creation of a non-rotational EX-1 position for the Director, TCS Marketing and Client Engagement” [emphasis in the original]. Finally, on the same day, the Director General wrote to the complainant and asked her to revise the job description and make the necessary changes. He wrote, “[translation] This is the final missing piece!”

[26] The complainant then referred to the July 13, 2017, email from her director general informing her that he had “[translation] good news” that the letter was in the ADM’s office for signature. At that point, the Director General left, leaving his position to Chris Moran.

[27] The complainant claimed that the period of ambiguity while waiting for the deployment caused her significant stress and negatively affected her morale.

[28] She testified that management blocked her deployment because she was the chair of a selection board for an EC-06 appointment process in June 2017. She argued that the ADM wanted a candidate qualified, even though the candidate had failed his assessment. Management apparently insisted that he be qualified, but the complainant objected, so much so that the Human Resources branch decided to cancel the process and relaunch it later. When the staffing process for the EC-06 position resumed, the complainant was still on the selection board, but apparently, management removed her from it.

[29] The complainant testified that the decision not to appoint her was made even before the appointment process completed. At the end of her secondment, she returned to her substantive position at the PCO.

[30] The complainant called Jean-Philippe Tachdjian, Assistant Director General, to testify about the process for staffing EC-06 positions. He worked with the complainant and the Director General on the selection board. In the process, they screened in 40 candidates, who wrote an exam that the 3 selection board members then corrected. They shared the exam correction task and consulted each other for the final results. The witness testified that they were under pressure from the ADM, who wanted her chief of staff appointed, who was a candidate in the process. She sought an indeterminate appointment to the position she held.

[31] For the process, the selection board chose to anonymize the applicants by replacing their names with numbers. The witness stated that he corrected the exam of candidate “18”, who turned out to be the ADM’s chief of staff, and that that candidate failed. The results were compiled into two undated tables. In the first table, candidate 18 failed, and in the second table, candidate 18 obtained a passing mark.

[32] The witness stated that when the Director General was informed of the results, he apparently said that it would be a problem. Human Resources received 2 versions of candidate 18’s exam, with two different marks: the first was 29 out of 45, and the second was 33 out of 45. The pass mark was set at 32.

[33] The witness said that he and the complainant were opposed to qualifying candidate 18, which went against values and ethics. According to the witness, the Director General would have been under considerable pressure from the ADM. Human Resources, which was informed of the situation, apparently asked a neutral third party to carry out a third correction of candidate 18’s exam; the candidate failed again, with a mark of 25. The process was cancelled at that point. The witness stated that he found the situation very unfair and frustrating.

[34] The complainant alleged that the decision not to appoint her was made even before the appointment process completed.

[35] The complainant then called on Gregory Radych, Senior Communications Advisor, to testify to support this allegation. Mr. Radych testified that on September 26, 2017, while preparing the financial documents for a trade show in Montréal, the Director General’s assistant told him to remove the complainant’s name from the event and from another one because she would be gone by November.

[36] The witness stated that he was surprised by the speed of the process, given that the poster was published in August and that everything was completed in September. He thought that there was something fishy about it. He also testified that the appointee worked hand in hand with the ADM.

[37] He also testified about the difference between experience managing marketing teams and experience managing web teams. They are different in that the web is one tool among many that the marketing team uses to achieve its goals.

B. For the respondent

[38] The respondent called Duane McMullen, the complainant’s former director general as of the process that is the subject of the complaint. He has retired. The appointee was under his authority.

[39] He testified that in 2016, the arrival of a new United States president drastically changed trade policies with that country. From then on, it was necessary to find other ways to reach more trading partners, and developing digital technology was the way to go.

[40] He reported that in spring 2018, the Communications branch was added to his branch, which was still being formed and was very disorganized. At that time, the complainant was on secondment and was doing good work, even excellent work, given the circumstances. He explained that he was pleased to have her on loan because she was able to do her job clearly and confidently, and she paid close attention to tying up the details.

[41] He explained the process of appointing candidates to rotational positions and added that those appointed to them do not on their own hold a position; rather, they occupy one while they are posted abroad. He stated that because of new strategic imperatives, the ADM had determined that a new combination of skills would be required to fill the position. He maintained that another goal of the process was to create stability in the organization.

[42] He added that he could not increase the number of positions at the EX-01 level; he had to convert a rotational director position to one that was not rotational. After that, the advertised appointment process was launched. He stated that the process launch was administratively painful.

[43] He explained the constraints associated with a special deployment and added that such a deployment is the ADM’s responsibility and that it requires a vacant position at the same group and level within the organization. He stated that he did not advocate for that approach.

[44] He acknowledged that a letter approving the complainant’s special deployment had been on the ADM’s desk but that it was probably accompanied by a memorandum advising her not to sign it out of concern that it would set a bad precedent. The memorandum was not entered into evidence.

[45] He argued that he had several options to fill the position, including a special deployment, a non-advertised appointment, an advertised process open only to GAC employees, and an advertised process open to employees in all departments.

[46] Although he acknowledged that the complainant was doing a good job, he opted for an advertised process open to employees in all departments. He stated that it was essential to conduct such a process not only to demonstrate transparency in the process but also because the ADM believed that the organization must have had better candidates. An advertised process was their agreed-to choice to fill the position. Positions at that level are highly sought after within GAC.

[47] He stated that he had the full required authority to establish the area of selection, the essential qualifications, the assets, and the methods of assessing candidates. He developed the assessment tools and formed the selection board. He also modified the originally proposed poster by reducing the number of required experience criteria from four to two. He also withdrew the experience of managing a budget of $750 000. He justified his decisions by stating that he did not want to restrict the pool of good potential candidates through criteria that were no longer relevant to the position. He also justified using asset criteria to be able to better manage the number of candidates to interview. He stated that the amendments were in no way made to favour the appointee. He also stated that he knew the appointee and had worked with her and that he knew the complainant and had also worked with her. He had no personal relationship with either one.

[48] The witness then stated that 12 candidates met all the essential qualifications, were assessed and interviewed, and submitted references. The complainant went through the entire process but failed to demonstrate one of the competencies, so she was excluded from it. After that, informal discussions took place, and the selection board changed its mind and concluded that she met all the skills and was qualified, and she was placed in the pool of successful candidates. At the end of the exercise, the selection board unanimously selected the appointee. The witness claimed that even had the complainant been found qualified for the position from the outset, it would not have changed the appointee’s selection as she was superior to the other candidates.

[49] The witness then discussed the EC-06 process in which the complainant acted as a member of the selection board. He confirmed that Human Resources invalidated and cancelled it. He recalled that a second process was then launched, but he did not remember the selection board members.

[50] The witness then discussed his relationship with the ADM. He said that the arrival of the new American president had changed everything, that trade diversification had become the main communications issue, and that they were in charge of communications. He stated that the ADM was relentless in her requests, that she was always disappointed with what she received, that she was very demanding in terms of the results to achieve, and that she was unfair. She wanted more marketing done and to grow the team. He stated that no one had a harder time with the ADM than did the complainant. He assumed that previous directors general had had many difficult days managing the ADM’s expectations, which must have been even more difficult for the complainant.

[51] Today, the marketing team’s workforce has tripled. He reiterated that he reported to the ADM, that she had unreasonable requests, that she was very difficult, and that it was not a good time for him. The witness reiterated that the ADM’s expectations were unreasonably high and that she was not satisfied with the complainant. He reiterated his claims that the ADM’s requests were unreasonable; he does not have a good memory of that time. He did not have a good relationship with the ADM; it was difficult to work for her, and her requests were unreasonable.

[52] The witness stated that the complainant’s team did a good job. Nevertheless, the ADM requested a weekly report from her to demonstrate what had been done in the previous week that in his view, reflected the ADM’s unreasonable nature. The complainant’s team was under great pressure from the ADM, although he did his best to reduce it.

[53] The ADM stated that there must have been a better candidate elsewhere and believed that by having an advertised process open to the public service, she would have a better chance of finding that candidate.

[54] The witness stated that the decision to post the staffing process on the date it was posted had nothing to do with the complainant going on vacation. The poster was published when the process was ready; he did not attempt to prevent anyone from participating in it. Furthermore, he argued, the complainant knew that it was coming.

[55] As to the nature of the ADM’s involvement in the appointment process, the witness replied that he had bilateral meetings with her and that he regularly informed her of its key steps. He stated that she had no influence on the outcome. He said that technically, she had no decision-making authority over the process. She had influence but apparently did not use it. He did not recall being told not to hire the complainant.

[56] He went on to confirm that the complainant asked him whether the process was a backhanded way of removing her from her position. He confirmed to her that the ADM was not satisfied with her performance. He stated that had she been the best candidate, he would have appointed her, although the ADM would have questioned him harshly. However, he stated that the ADM would never have approved the complainant’s deployment. He stated that her best chance of keeping her position was to participate in the advertised process.

[57] In fall 2020, the appointee was deployed to the PCO. A new staffing process was launched for the same position. The witness decided not to return to the pool of successful candidates created from the process because he knew that he would leave the public service shortly, so he preferred to leave it to the next director general to staff the position as that person saw fit, although he knew that the complainant would have been interested in the position. He also stated that he knew that the other two candidates in the pool did not want to work for the ADM.

[58] The complainant returned to her substantive PCO position in November 2018.

IV. The parties’ arguments

A. For the complainant

[59] The complainant made these several statements to support her complaint. The process was launched one day before she left for a vacation abroad. Apparently, there were rumours that she would no longer be at GAC in November (2018). She participated in the process on her director general’s insistence. She did not qualify in the process. Only after the informal discussions was she again placed in the pool of qualified candidates. The ADM did not want her in the position. She would have wanted to stay at GAC in another position at her level that matched her qualifications. The appointee was appointed even before the informal discussions ended. She is a member of a minority group. Management did not apply the clause that at-level candidates could be appointed as a priority. And the appointee did not have all the qualifications required to occupy the position.

[60] She alleged that the respondent abused its authority in the application of merit because she considered the essential experience criteria to occupy the position very light. She argued that positions at that level normally have four essential experience criteria and that in this case, only two were identified. An earlier process, for that level of position, had three to six experience criteria, and in this process, the essential experience criteria were removed and put under the asset qualifications. That led her to state that those downward changes were chosen to favour the appointee.

[61] The complainant repeatedly returned to claim that the appointee, to her knowledge, had not led a marketing team (Experience 1) but a web team and had no significant management experience (Experience 2). She claimed that her position required many more functions.

[62] In her argument, the complainant relied on the Supreme Court of Canada’s decision in Roncarelli v. Duplessis, [1959] SCR 121, for the definition of the concept of bad faith, which may encompass carelessness or serious indifference that would imply a breakdown of the orderly exercise of authority, to the point that the absence of good faith can be deduced and bad faith presumed. She stated that her special deployment was being completed when she was blocked, which corresponded to the period during which she refused to qualify a candidate who had failed the EC-06 process.

[63] She referred to Tibbs v. Deputy Minister of National Defence, 2006 PSST 8, which presents categories of abuse, the fifth of which is the delegate who refuses to exercise his or her authority and adopts a policy that impedes the ability to examine individual cases with an open mind. She completed the analysis using Bowman v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 12. She defined bad faith as “[translation] a lie masquerading as the truth”. She argued that the ADM was biased and hostile toward her.

[64] She referred to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 SCR 369 at 394 (“Committee for Justice”), which set out the test for the apprehension of bias by asking this question: “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude.”

[65] To support her allegation of abuse of authority in the application of merit, the complainant referred to Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7, which stated that complainants must establish a personal relationship between the person in charge of the appointment process and the appointee to make the appointment or to gain a favour. She stated that the Director General was under pressure from the ADM, who apparently predicted better days ahead for him if he appointed the appointee. The complainant alleged that the Director General wanted to gain the ADM’s favour.

[66] The complainant referred to Bambrough v. Canada (Public Service Commission Appeal Board), [1976] 2 FC 109 (C.A.), and Canada (Attorney General) v. Blashford, [1991] 2 FC 44 (C.A.), with respect to the required qualifications that could be amended to favour a candidate, and she stated that the appointee would not have qualified had there been four essential experience criteria.

[67] She concluded by stating that this significantly impacted her health, that she had to take sick leave, that the entire process had been extremely difficult, and that she wanted this complaint process to help her move forward.

[68] For corrective action, the complainant left it to the Board to recommend those to implement. Nevertheless, she recommended that the PSC implement audits and investigations of all the ADM’s appointments of managers.

B. For the respondent

[69] In its argument, the respondent stated that the complainant’s reference to the EC-06 process served only to muddy the waters. It argued that in this case, the Human Resources branch terminated the process because it had not been successful.

[70] In addition, under Blashford and Bambrough, mentioned earlier, the respondent was entitled to amend the statement of merit criteria. In addition, the complainant’s reference to the earlier appointment process for the position at issue and the number of asset criteria used were mere speculation.

[71] It stated that the selection board’s report clearly established that the appointee met all the criteria and asset qualifications set out. It reiterated that the complainant had been qualified and placed in the pool of qualified individuals.

[72] Referring to the alleged bias, the respondent argued that there was no evidence that the selection board was biased in any way against the complainant or the appointee. It stated that if management’s true desire had been to remove the complainant from her position, it could simply not have renewed her secondment agreement. The Director General could also have limited the area of eligibility to exclude her. The appointment process was advertised for the sake of transparency and to enable the complainant to participate in it.

[73] The respondent also referred to Tibbs to indicate that the complainant had the onus of demonstrating abuse of authority. In this case, in its view, there was no evidence to that effect. It argued that she relied on irrelevant evidence to argue that the appointee did not meet all the merit criteria. It argued that the selection board had all the tools and information to assess the candidates.

[74] The respondent acknowledged that it was very difficult for the Director General to work with the ADM but that she had no “[translation] substantive authority” over the selection board. It stated that the selection board concluded that the appointee was by far the best qualified for the position and was well ahead of the complainant.

[75] The respondent also admitted that the complainant did a good job during her secondment but that that did not guarantee success in the appointment process.

[76] The respondent concluded its argument by arguing that the complainant failed to establish on the preponderance of the evidence that abuse of authority occurred in this appointment process and that the complaint should be dismissed.

V. Reasons

[77] Section 77(1)(b) of the Act reads as follows:

 

[78] Section 30 of the Act reads as follows:

 

A. The assessments of the appointee and the complainant

[79] The complainant alleged that the essential and asset qualifications that the selection board chose did not reflect the experience required to perform the position’s duties. She also alleged that the appointee did not meet the merit criteria for the essential and asset qualifications.

[80] Section 30(2) of the Act gives the respondent considerable discretion when determining qualifications for a position. Therefore, the manager is responsible for establishing the statement of merit criteria for the position to be filled. That statement may vary over time, depending on the organization’s needs; for example, a criterion that was once essential may no longer be later on, such as the budget criterion in this case. This is part of the discretion that the Act provides to managers. According to Tibbs, the complainant is responsible for establishing on the preponderance of the evidence that the manager abused his or her authority when establishing the merit criteria.

[81] In this case, the respondent, through its witness, explained why the statement of merit criteria had some changes made to it, including the one related to the experience of managing a $750 000 budget. That criterion became obsolete through organizational changes in the Communications branch. The same applies to the other merit criteria. I find that the respondent’s explanations established that there was no abuse of authority from the changes to the statement of merit criteria, so the complainant did not persuade me on the preponderance of the evidence that there was an abuse of authority in that respect.

[82] The complainant also alleged that the appointee did not meet the experience requirements of managing a marketing team as she had managed only one web team and did not have significant management experience. She offered only her assessment of the appointee’s candidacy to support her claim. The respondent’s witness contradicted the complainant’s claim by stating that through its assessment tools, the selection board clearly established that the appointee met all the essential and asset qualifications. The complainant failed to demonstrate on the preponderance of the evidence that the appointee did not meet all the statement of merit criteria’s requirements.

[83] The complainant alleged abuse of authority in the assessment of her application.

[84] In Portree v. Deputy Head of Service Canada, 2006 PSST 14 at paras. 47 and 49, the Tribunal stated the following:

[47] An allegation of abuse of authority is a very serious matter and must not be made lightly. In summary, in order to succeed before the Tribunal, a complaint for [sic] abuse of authority must demonstrate on a balance of probabilities a serious wrongdoing or flaw in the process that is more than a mere error, omission or improper conduct that justifies the Tribunal’s review and intervention.

…

[49] Employees who allege that there has been an abuse of authority and, thus, a contravention of the PSEA and who wish to obtain a remedy for that contravention must present convincing evidence and arguments to be successful.…

 

[85] In this case, from the testimonies of all the witnesses, it is clear that the ADM was very present in the management of the Communications branch. Among other things is the testimony of the respondent’s witness, who reported that the ADM required that the complainant prepare weekly reports to inform her of the Communications branch’s achievements.

[86] It is also clear from the testimonies of the complainant and her first witness that the ADM intervened inappropriately in favour of one candidate, particularly in another appointment process. The complainant’s first witness corroborated those testimonies; he was a member of the selection board. So did the respondent’s witness, who acknowledged that the process had to be cancelled and eventually restarted, although he did not elaborate on why the appointment process was cancelled.

[87] My takeaway from this evidence is not so much the potentially reprehensible nature of the actions allegedly taken but the strength and manner in which the ADM imposed her influence on subordinate managers to achieve specific purposes.

[88] Contrary to the respondent’s argument, I do not consider that the incident in the EC-06 appointment process merely “[translation] muddies the waters”; rather, it explains why the respondent opted for an advertised appointment process. That impression is reinforced by the Director General’s testimony, in which he repeatedly reiterated the unreasonableness of the ADM’s claims and expectations of him and of the Communications branch. He further acknowledged that it had been a particularly difficult time for the complainant because of the ADM’s unreasonable requests, including among other things the requirement to report weekly on her activities.

[89] The evidence does not support the allegation of personal favouritism in favour of the appointee, as the complainant stated. In effect, the respondent’s chosen selection criteria, both essential and asset, are at the deputy head’s discretion. The complainant did not establish on the preponderance of the evidence that the respondent chose certain qualifications over others to favour the appointee. In addition, the selection board assessed the appointee and found that she met all the stated qualifications and that her appointment was justified.

[90] The complainant did not persuade me that on the preponderance of the evidence, the appointee benefitted from personal favouritism from the manager while assessing the appointee’s application. In fact, Glasgow established that the complainant must demonstrate on the preponderance of the evidence a personal relationship between the person in charge of the selection and the appointee and that that person was appointed as a personal favour or to gain someone’s favour. In this case, the evidence established that the appointee also worked, as did the complainant, for the same director general, but the complainant did not establish any personal relationship between those two persons. Therefore, this allegation is dismissed.

[91] That said, the opposite of personal favouritism toward someone manifested itself in this case — it was against the complainant. In my view, it was an abuse of authority.

[92] The effect of the ADM’s involvement in following up on the process and using her influence over the individuals involved, particularly the Director General, placed the complainant at a disadvantage, so much so that she could not have been assessed fairly and objectively, even though her name had been placed in the pool of qualified individuals. The respondent, through the Director General’s testimony and argument, reiterated repeatedly that the complainant was found qualified and was placed in the pool of qualified candidates.

[93] It is important to note that at the initial assessment, the complainant did not qualify because she failed to demonstrate her “… ability to mobilize people, to collaborate with partners …”. The references were used to assess that qualification. I consider the assessment of that qualification highly subjective as it depended both on those who provided the references and on the person who received and assessed them. The Board already stated in a recent decision that references should be used as a selection tool rather than as an assessment tool, to alleviate the subjectivity problem (see Rizqy v. Deputy Minister of Employment and Social Development, 2021 FPSLREB 12 at paras. 64 to 67).

[94] I acknowledge that the person who assesses has the discretion to assess and that I can intervene only if I find that on the preponderance of the evidence, this is a situation of an abuse of authority. In this case, I need not, because the Director General corrected the complainant’s assessment, ultimately found her qualified, and placed her in the pool of qualified candidates.

[95] The effect of the complainant’s late qualification had no influence on selecting the appointee. The die had been cast before the process began — the complainant would not be appointed. The ADM had been clear about it; according to the testimony of the respondent’s witness, the ADM believed that the organization must have had better candidates. Therefore, I conclude that because of her intervention, albeit passive, abuse of authority occurred in assessing the candidates to the appointment process.

[96] To support this conclusion, I considered the complainant’s good performance evaluations and the Director General’s comments about her good performance. He acknowledged that she did a good job, although he tempered it by the “circumstances” of what took place during her administration. He also admitted that had the complainant been found most qualified in the advertised process, he would have had difficulty convincing the ADM, but that with Human Resources’ support, he would have succeeded. All this is very theoretical in the circumstances, but it demonstrates very well the prevailing situation at the time and the ADM’s mindset toward the complainant.

[97] The complainant rightly referred to Committee for Justice, which set out the test for the apprehension of bias by asking the following question: “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude.” I consider that in light of the evidence, a well-informed person who studies the matter in depth, realistically and practically, would conclude that bias against the complainant was proved.

[98] I find that there was abuse of authority in the assessment of the complainant, in contravention of s. 77(1), and that this ground is sufficient to allow the complaint.

B. The choice of appointment process

[99] The complaint is also based on s. 77(1)(b) of the Act; it alleges that abuse of authority occurred in the choice of process.

[100] Section 33 of the Act states, “In making an appointment, the [Public Service] Commission [or someone with delegated authority] may use an advertised or non-advertised appointment process.” Thus, the choice of opting for one process or the other is not in itself an abuse of authority. The circumstances surrounding the choice can lead to an abuse of authority.

[101] The complainant was seconded to GAC. She testified that she would have liked to have been appointed through a deployment. Her evidence, which the exchanges of emails dealing with the “[translation] Special Deployment” corroborated, demonstrated that everything seemed to indicate that such an appointment was in the process of being made. There is no doubt that to complete a special deployment, the previous director general had to undertake specific procedures, including preparing a letter to the ADM approving the special deployment. The Director General corroborated the existence of the letter but added that it must have been accompanied by a memorandum recommending that the ADM not sign it.

[102] Management has the discretion to transform secondments into indeterminate appointments. However, its discretion cannot be based on abuse of authority by the ultimate authority, in this case, the ADM.

[103] The complainant’s evidence, which the respondent’s witness corroborated in part, demonstrated that the ADM was supposedly displeased by the facts of an appointment process (EC-06). The allegations are strong that the ADM would have liked to have seen qualified a candidate who had apparently failed the appointment process and that the selection board would have objected to it. The complainant claimed that that incident prompted the ADM not to sign the special deployment letter that was on her desk. Although in his testimony, the Director General insisted that it was values of transparency that led him, not the ADM, to opt for an advertised process.

[104] The respondent argued that that evidence fell under the Browne and Dunn rule, which cannot apply if the party raising it chooses to ignore the evidence that the complainant put forward. In this case, the respondent objected, in its introduction, to some evidence being filed; it had not been filed as of then, so the respondent knew that it would be filed. I have already found that it could not state that it was surprised by the evidence being introduced and raise the Browne and Dunn rule.

[105] When I consider all the evidence, especially the Director General’s testimony about the ADM, the preponderance of the evidence is in the complainant’s favour. This is not a matter of the credibility of the testimony heard; I believe that it was all credible. A person put forward an event corroborated by a second witness, and the Director General portrayed the ADM as unfair and as having unreasonable expectations. I believe that the ADM’s intervention in the EC-06 position process and her decision not to move ahead with the special deployment were manifestations of it.

[106] In her argument, the complainant relied on Roncarelli to define the concept of bad faith, which is often cited in the Board’s jurisprudence. She relied on Cameron v. Deputy Head of Service Canada, 2008 PSST 16 (judicial review application allowed for corrective action in Canada (Attorney General) v. Cameron, 2009 FC 618). In that case, the former Public Service Staffing Tribunal ruled on the concept of bad faith, referring to Finney v. Barreau du Québec, [2004] 2 SCR 17, and finding that bad faith had to be given a broad meaning that encompassed serious carelessness or recklessness. The Tribunal considered all the actions taken to determine whether they were circumstantial evidence of bad faith.

[107] All the circumstances, including the promise of the “[translation] Special Deployment”, the complainant’s favourable performance evaluations, the Director General’s recognition of the good work in her position, the cancellation of the EC-06 position process by which the ADM would have wanted to compel the qualification of a candidate who had failed in the appointment process, and the ADM’s resulting animosity toward the complainant contributed to ensuring that management would renege on its commitment to deploy the complainant and led it to conduct an advertised process knowing that she would not be the appointed candidate.

[108] Management had the required discretion to not proceed with the special deployment and to choose to proceed by an advertised process. The Director General argued that the choice of an advertised process was made for the sake of transparency. However, because a process is advertised does not necessarily mean that it is transparent; nor is an appointment as a result of a non-advertised process less so. The Act also allows for both types of appointments. In this case, the evidence demonstrated that the motivation behind the decision of the choice of process was based on the ADM’s desire to replace the complainant for reasons unrelated to her qualifications. I conclude that the respondent’s actions, in the circumstances, involved a breach of the terms of its exercise of discretion, so much so that the absence of good faith could be deduced and presumed, and therefore, it abused its authority.

[109] It was possible for the respondent to call the ADM to testify and present contradictory evidence. It would have been all the easier because the hearing was virtual. The respondent did not, and I must rely on the evidence before me.

[110] The choice of appointment process in this case was based on the respondent’s bad faith; the preponderance of the evidence established that that choice was tainted with bias against the complainant.

[111] Therefore, I find that there was abuse of authority in the choice of appointment process, in contravention of s. 77(1)(b).

VI. Corrective action

[112] The complainant left it to the Board to recommend the corrective action to implement. Nevertheless, she recommended that the PSC implement audits and investigations of all the appointments of managers that the ADM made.

[113] When this decision was written, the complainant and the appointee were no longer in GAC positions, and the Director General had retired. Under the circumstances, the Board ordering the revocation of the appointee’s appointment, as provided in s. 81(1) of the Act, is not an option.

[114] Therefore, I would recommend that the PSC review the appointments made during the period that the ADM held her position at GAC and those made subsequently, if necessary, to ensure their compliance with and adherence to the Act.

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

(The Order appears on the next page)

VII. Order

[116] For all the above reasons, the complaint is allowed.

September 26, 2022.

FPSLREB Translation

Guy Grégoire,

a panel of the Federal Public Sector

Labour Relations and Employment Board