FPSLREB Decisions
Decision Information
The complainant alleged that the respondent abused its authority in the application of merit – the complainant argued that the assessment method and tool used in the appointment process were imprecise, subjective, and biased – the Board determined that the exam, assessment guide, and assessment criteria provided a fair and equitable assessment of the candidates and allowed an observer other than the marker to distinguish precisely the answer components that had merit compared to others – while the complainant argued that the lack of expected answers in the assessment guide resulted in a high degree of subjectivity, the Board found that the management scenarios at issue had several acceptable answers and that a series of criteria were established to help assess the answers – despite the complainant’s allegations of bias, the evidence did not demonstrate that his director harboured any ill feelings toward him – ultimately, the complainant failed to demonstrate on the preponderance of the evidence that an abuse of authority occurred in the assessment of his candidacy.
Complaints dismissed.
Decision Content
Date: 20230227
Files: 771-02-41184 and 41204
Citation: 2023 FPSLREB 23
| Public Service Employment Act
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BETWEEN
Jean-Luc Bédard
Complainant
and
(Department of National Defence)
Respondent
OTHER PARTIES
Indexed as
Bédard v. Deputy Head (Department of National Defence)
Before: Guy Grégoire, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Robert Melone, Professional Institute of the Public Service of Canada
For the Respondent: Noémie Fillion, counsel
For the Public Service Commission: Louise Bard
October 17 and 18, 2022.
(FPSLREB Translation)
REASONS FOR DECISION
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FPSLREB TRANSLATION
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I. Complaints before the Board
[1] In September 2019, the deputy head of the Department of National Defence (“the respondent”) conducted an advertised internal appointment process, numbered 19-DND-IA-ST-445090 (“the appointment process”), to staff section head positions at the EN-ENG-05 group and level.
[2] On October 25, 2019, the respondent posted the Notification of Appointment or Proposal of Appointment of Éric Boivin to an indeterminate section head position. On November 6, 2019, it posted a notice of Pierre Michaud’s appointment on an acting basis, and on August 12, 2020, it posted his promotional indeterminate appointment to the same position.
[3] Jean-Luc Bédard (“the complainant”) applied for the position, but his application was rejected after the written exam. On November 8, 2019, he made a first complaint against Mr. Boivin’s appointment, and on November 16, 2019, he made a second complaint, this time against Mr. Michaud’s acting appointment. As the two complaints were about the same process, allegations, and arguments, they were joined and heard together.
[4] The complainant alleged that the respondent contravened s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the Act”) and that it abused its authority in the application of merit in the appointment process.
[5] For the reasons that follow, I dismiss the complaints, and I conclude on the preponderance of the evidence that the complainant did not demonstrate that the respondent contravened the Act by abusing its authority in the application of merit in the appointment process.
[6] Note that the Public Service Commission (PSC) did not attend the hearing but that it submitted general and specific written arguments about its appointment policy.
II. Summary of the evidence
A. For the complainant
[7] In his complaint, the complainant alleged that the assessment method and tool were imprecise, subjective, and biased. He stated that the exam and its assessment lacked transparency and consistency. Finally, he added that the assessment tool’s alleged faults made it inadequate. He set out these two questions: 1) Were the assessment method and tool transparent and consistent? 2) Did the assessment and marking methods make the assessment tool inadequate?
[8] He argued that the respondent abused its authority in the application of merit when assessing the candidates. As corrective measures, among other things, he asked to be placed in the EN-ENG-05 pool or, if required, to have a new assessment marked by an unbiased assessor.
[9] According to the testimonial and documentary evidence, the respondent conducted a staffing process to staff two positions at the EN-ENG-05 group and level and to create a pool of qualified candidates. The assessment process involved candidate screening, a three-question written exam, an interview, reference checks, and the selection of the qualified candidate who best met the position’s requirements. The issue is about how the written exam was used to assess the candidates and, eventually, disqualify the complainant.
[10] The complainant said that he is a trained engineer. Since 1997, he has worked at the Department of National Defence in the Defence Research and Development Canada (DRDC) group, including 15 years as a project manager at the EN-ENG-04 group and level.
[11] He explained that in that role, he manages personnel and equipment use and ensures that the workshop runs smoothly, and he reports to DRDC management. In addition to his duties, he organizes social activities. He is also a union steward for the Professional Institute of the Public Service of Canada representing engineers, architects, and surveyors. He sits on the union-management consultation committee.
[12] He said that he always had a good relationship with his former director, who left in 2018, and he adduced into evidence a recommendation letter written that year. Bruno Gilbert (“the director”) replaced the former director, was the manager responsible for the appointment process, and was the respondent’s only witness.
[13] The complainant spoke about his relationship with the director, who was rather cold toward him and uncooperative. Their relationship deteriorated. He filed several items of correspondence (from September 26 and October 1 and 2, 2018, and November 23, 2019), which were adduced into evidence, to establish the unease between him and the director. The respondent objected to their introduction (and the reference letter) on the ground that they were not relevant. I decided to admit them because I concluded that they would help with understanding the context.
[14] The complainant also filed a personal letter dated January 22, 2019, about his health. The respondent objected, but for the same reasons as explained earlier, I agreed to admit it.
[15] He also filed his performance evaluation and said that although his relationship with the director had become difficult, he was 200% invested in his work. He submitted that he became an irritant for the director, who failed to distinguish him from his union-steward role. The complainant was in the EN-ENG-05 position on an acting basis for four months and said that he performed good work.
[16] He testified that he completed the exam during a seven-month sick leave because he did not want to miss the opportunity. He failed the exam. Therefore, he did not move on to the interview and oral presentation. On June 4, 2019, he received the rejection notice. He said that he was very surprised by his failure because he had never failed an academic or professional exam. Later, he took part in informal discussions with the director so that he could determine the expected answers, but allegedly, he was told that there were none.
[17] On February 19, 2020, an information-sharing meeting took place. The complainant attended, along with the director, Jean Fortin, the section head, and Ms. Girard and Ms. Sénéchal from Human Resources. The complainant had all the documents with him. At the meeting, he learned that Mr. Fortin marked the exam alone and that the director and Francine Desharnais validated the marks.
[18] He testified that there was no marking grid or expected answers. He said that no one could tell him which part of the exam was used to assess each criterion, management was confused about how each factor was assessed, and there was no weighting grid or document to support weighting. He also submitted that there was no explanation for his failure. He was told that the assessment was comprehensive and general. The meeting ended abruptly after 45 minutes, although it was supposed to last 90 minutes. He said that he was astonished that he did not receive the answers he expected.
[19] He went over every exam question, and for each one, he gave his answer. He submitted that the selection committee never specified the components of the answers it was looking for. He felt that the marking was completely unfair.
[20] He submitted as evidence a copy of his written exam, namely, his briefing note, the email reply, his PowerPoint presentation, and the “[translation] Assessment Guide” (“the guide”) that was used for his exam. He also filed as evidence the same documents from the appointed persons.
[21] To help with understanding, it is useful to explain the guide and how it is presented. The first part has the candidate’s name, and right below it is the criteria rating scale. The weighting is as follows: excellent (4 marks), very good (3 marks), good (2 marks), poor (1 mark), and does not meet expectations (0 marks). Each rating is defined, which describes the mark that the candidate received.
[22] The table is divided into 4 columns: Abilities/Personal suitability, Min(imum) pass mark, Assessment criteria for the written exam overall, and Comments. The Min(imum) pass mark column contains the lowest passing mark, and each criterion indicates “[translation] no element less than ...” with a number, 2, for example. It means that a candidate receiving a mark of 1 would fail that criterion.
[23] The table rows are as follows: the statement of the ability or personal suitability criterion being assessed, the overall mark obtained for it, the detailed mark based on the applicable assessment criterion, and the marker’s comments about the answer that was assessed.
[24] The complainant testified that in February 2020, he had all the documentation with him. He said that he did not have the marking grid with the expected answers. He also said that in the informal discussions, no one informed him as to the document used to assess each criterion. He submitted that management was confused about how each element was assessed as the mark was assigned to the written exam in its totality. He testified that he was astonished that there were no expected answers.
[25] He said that in paragraphs 14 and 15 of his briefing note, he proposed 10 options and that he considered it completely unfair that he received a 0 mark on the criterion, “[translation] Considers more than one option in the briefing note”. He said that in reality, the DRDC had actually implemented all the options proposed in his briefing note. He said that no specifics were given about which document, the briefing note or the email, was used to assess this ability.
[26] The complainant also pointed out the appointed persons’ spelling mistakes and noted that although he had made fewer errors than they had, he obtained a lower mark (3 out of 4) while they received 4 out of 4 on ability A5, the ability to communicate in writing.
[27] He also testified that his briefing note followed the proposed template but that those of the appointed persons had errors, including a missing security classification and no page numbers.
[28] He said that the exam did not require an action plan but that the grid awarded points for one. He stated that he had never received such a low mark (49 out of 108) at both the academic and professional levels.
B. For the respondent
[29] The respondent called only the director to testify. He has worked for it since 1989 and has held multiple positions. He was appointed as a DRDC director in February 2018. He is responsible for about 250 employees and manages infrastructure, scientific operations, and the directorate’s budget. He said that he has managed a large number of appointment processes since 2008, mainly in the scientific and information-management occupational groups.
[30] He explained the context of the appointment process in this case. He said that he wanted to fill two section head positions, one in prototyping and the other in project management. He testified that before the process was held, management offered onsite engineers one of the positions on an acting basis for no more than four months less a day. He explained that it was a first-level management position in which the appointed person was responsible for a budget, managing human resources, and delivering research and development projects. The complainant obtained one of the acting positions in managing prototype projects for four months less a day.
[31] The director said that before he arrived in 2018, he knew the complainant only by name, and that their relationship was the same as he had with any other professional in his organization. He attested that they were both members of the union-management consultation committee.
[32] He said that Mr. Fortin took on the appointment process and that the selection committee consisted of him; Ms. Desharnais, the chief scientist; and Marie-Pier Guy, from Human Resources. Mr. Fortin worked on the appointment process. He prepared the questionnaire and interviews. The director provided feedback on the assessment tools.
[33] During winter 2018 and in early 2019, Mr. Fortin conducted the appointment process (the director was on leave until May 2019). He marked the exams and assessed the interviews. Ms. Desharnais helped him draft the exam and reviewed the exam marks.
[34] The director presented the different steps of the appointment process: the screening, the three-question written exam, the six-question interview, the reference checks, and the selection of the candidates who best met the position’s requirements.
[35] He explained that the candidates had 24 hours to answer the 3 exam questions. The first question was a case analysis for which the person had to prepare a briefing note using the departmental style guide, provide options, and make recommendations. The second question was to draft an email to a subordinate who had raised a concern about a work overload. The last question asked the candidate to use the briefing note prepared in question 1 to make a 5-minute PowerPoint presentation, which was the interview portion of the assessment.
[36] The director admitted that the complainant, who was on sick leave when he received the exam, did not have the style guide. He received an email with a Word version of the guide.
[37] The director explained that the selection committee expected two pages but that the candidates were not penalized if they answered on three pages. He also explained that question 3 was intended to complement question 1, and the candidates had five minutes to have management approve the recommendations in their briefing notes.
[38] The complainant failed at the exam stage. The director explained that Mr. Fortin marked the exam and that he and Ms. Desharnais reviewed the results. The selection committee quickly informed the candidates as to whether they had passed or failed the exam.
[39] The director said that it was not a technical, mathematics, physics, or chemistry exam. It measured the candidates’ abilities to understand strategic issues in a realistic scenario. They had the latitude they required to answer based on the context that was familiar to them. There were no A, B, or C answers per se but rather answers based on their judgment.
[40] The director testified that the exam assessment focused on the overall written exam, meaning the written exam itself, the briefing note, the email, and the PowerPoint presentation. He submitted that the marking was consistent and fair. One person, Mr. Fortin, marked the exams. Ms. Desharnais reviewed the marks. She was external and had no preconceived notions about the complainant. Later, those same people had a group discussion with the director to ensure that the marking was fair.
[41] At the time, the director discussed the complainant’s exam. Note that the marking guide submitted as evidence contains Mr. Fortin’s handwritten comments that support the mark that he assigned to each criterion.
1. Ability A1: Ability to negotiate to find realistic and effective solutions
[42] This ability had four assessment criteria. For the first criterion (“[translation] Considers more than one option in the briefing note”), the complainant was marked at 0 out of 4. The written exam’s first question asked for a briefing note presenting the scenario issue, a contextual analysis, a list of options, and one or more recommendations and, finally, to formulate a request.
[43] According to the director, the complainant offered no options, just recommendations, which justified the mark of 0 out of 4. The selection committee gave him credit for 13 recommendations, some of which were legitimate, and marked him at 2 out of 4 for the second criterion (“[translation] Makes recommendations that are achievable in the described context, demonstrating an understanding and consideration of the issues ...”).
[44] The third and fourth assessment criteria for ability A1 were, “[translation] Makes recommendations that promote economy of effort”, and, “[translation] Makes logical and well-reasoned assumptions”. The director explained that the scenario issue was a work overload and that he expected that options would be identified to mitigate the problem and achieve economy of effort. He stated that the briefing note had to identify the issue but that the complainant failed to map out the decision making by not proposing an option to be carried out. He went on to state that the complainant did not analyze options and that all his recommendations were along the same lines, meaning that he did not put one ahead of another and that he did not prioritize any of the recommendations. He received 1 out of 4 marks on each of the third and fourth criteria.
2. Ability A2: Ability to identify and anticipate challenges, mitigate risks related to initiatives, and respond effectively to unforeseen issues and deadlines
[45] The director explained that for this ability, the complainant received 4 out of 4 marks for the first criterion (“[translation] Exam handed in on time”), 3 out of 4 marks for the email reply (“[translation] Question 2: Considers the employee’s viewpoint while remaining loyal to the decisions that were made”), and 1 out of 4 marks for the third (“[translation] Demonstrates an ability to manage change”). He returned to his previous explanation, which was that the complainant provided no options, only recommendations, without prioritizing. Finally, for the fourth criterion (“[translation] Uses a problem-solving approach in the recommendations”), the complainant received 1 out of 4 marks because he offered problem solving but did not identify the problem to solve.
[46] The director added that the complainant failed to identify the major issue, which was the work overload, and that at paragraph 19 of his briefing note, he made a comment that was inappropriate in the circumstances by boasting about his personal qualities to promote his candidacy, not to solve the problem.
[47] The director said that the complainant should have provided three or four options and should have made recommendations, as the guide indicated.
3. Ability A3: Ability to establish and manage priorities
[48] For this ability, the director explained that for the first criterion (“[translation] Addresses the theme of managing priorities when analyzing the options (briefing note)”), 1 of the 13 recommendations dealt with managing priorities effectively but offered no options, which earned the complainant 1 out of 4 marks. The second criterion was not assessed, and everyone received 4 out of 4 marks. As for the third criterion (“[translation] Anticipates problems and mitigates risks by negotiating changes to deadlines or the scope of the work”), although the complainant mentioned “[translation] managing priorities effectively”, he went no further in his analysis, which earned him 1 out of 4 marks.
4. Ability A4: Absent from the assessment guide
[49] This ability was not assessed because the complainant’s candidacy was rejected before he reached this stage.
5. Ability A5: Ability to communicate in writing
[50] The director explained that for the first criterion, “[translation] uses an appropriate language level (register, intelligibility, vocabulary, spelling, structure)”, the complainant received 3 out of 4 marks and that the appointed persons received 4 out of 4. In response to the complainant’s argument that the appointed persons made more spelling errors than he did but that they received all the marks, he said that spelling was only one of several things used to evaluate this ability and that it was not a French exam. He added that the complainant’s text contained passages that were unintelligible and hard to follow. It was more than just the spelling.
[51] The second criterion of ability A5 was about the briefing note format, and the director submitted that the complainant’s proposed format followed the guide model almost exactly but that there were no options, which was a substantive error. He demonstrated that the appointed persons provided options and made recommendations from them. The complainant received 2 out of 4 marks for the second criterion. The director also said that conciseness was part of the communication ability (“[translation] Presents information and conveys messages clearly, precisely, and concisely (no more than 2 pages for the briefing note)”). He said that no one was penalized for drafting a 3-page briefing note, although the selection committee preferred conciseness. He said that the complainant’s briefing note was not concise and that in addition, his PowerPoint presentation was 21 slides. He said that such a presentation would have exceeded the 5 minutes allotted for the oral presentation. The complainant received 1 out of 4 marks on that criterion. The director said that the message was to be simple, direct, precise, and coherent (“[translation] Adapts the communication format and content for the intended audience”). He said that the complainant did not get to the point and that there was no key option. He admitted that it was well written, but it lacked logic. The complainant received 1 out of 4 marks for the last criterion as well.
6. Ability A6: Ability to identify and manage conflicts
[52] The director admitted that although the complainant received 1 out of 4 marks for the first criterion (“[translation] Question 2: Takes ownership of the situation with the employee and responds appropriately. Includes an action plan”), it could have been 2 or even 3 out of 4 as the email was written well, despite the fact that the assessment might have been wrong, and that the end of the email demonstrated resignation. For the second criterion (“[translation] Maintains a mature, poised attitude and takes an objective approach”), the director said that although the email was correct, on the contrary, at paragraph 19 of the briefing note, the complainant highlighted his candidacy and qualities, which the director considered inappropriate because that was not the objective, which was instead to respond to a practical problem. The complainant received 2 out of 4 marks for the second criterion. For the third criterion (“[translation] Has integrity and is accountable for his or her words”), the director said that the selection committee found that at paragraph 13 of his briefing note, the complainant’s proposal to pressure the deputy minister lacked integrity. He received 2 out of 4 marks for the third criterion as well.
7. Personal suitability PS2: Leadership
[53] The director said that for the first criterion (“[translation] Analyzes the options and makes appropriate recommendations”), the complainant received 1 out of 4 marks because there was no analysis of options, and some recommendations were not relevant. As an example, he mentioned replacing a bulletin board that would have had little relevance. The second criterion was not assessed, and all candidates received 4 out of 4 marks. For the third criterion (“[translation] Demonstrates an ability to manage change/adapt to new situations”), the complainant received 1 out of 4 marks because there was no change-management plan, and the issue was not defined. For the fourth criterion (“[translation] Connects the internal and external environments (a holistic view of the situation)”), the director said that the candidates had to explain the situation to be addressed strategically and state how they would carry out the proposed options. The complainant received 1 out of 4 marks.
8. Personal suitability PS3: Client-service orientation
[54] The director said that the first criterion (“[translation] Actions geared toward the results to be delivered”) was about prioritizing and that the complainant did not get to the heart of the options. So, he received 2 out of 4 marks. The second criterion (“[translation] Balances achieving results with employee well-being”) was about low employee morale and their work overload. The selection committee decided that organizing a barbecue was not enough, and he received 2 out of 4 marks. For the third criterion (“[translation] Strives to find solutions”), the director admitted that the complainant should have received 2 or 3 out of 4 marks despite receiving only 1, although his proposed recommendations did not resolve the fundamental problem.
9. Personal suitability PS5: Tact and diplomacy
[55] This personal-suitability factor had two assessment criteria. For the first criterion (“[translation] Adopts a fair attitude when responding to employees (Question 2)”), the complainant received 3 out of 4 marks. For the second criterion, (“[translation] Is respectful and open-minded”), he also received 3 out of 4 marks.
10. Informal discussions
[56] The director testified that he participated in two informal discussions with the complainant, to explain the exam’s assessment. The first meeting went well, but at the second, the complainant was allegedly impolite toward the director and had an aggressive tone. Apparently, the Human Resources person intervened and stated that the director did not have to answer questions that were asked in an aggressive tone, which led to the meeting reportedly ending prematurely.
[57] In cross-examination, the director said again that the overall exam was used to assess the candidates. He once again reviewed the difference between options and recommendations and the fact that the complainant provided no options, only recommendations, the first concept referring to potential approaches and the second to the choice of preferred options to pursue. He illustrated the concept by stating that one recommends options. The director went on to state that all the complainant’s recommendations were along the same lines and that he did not endorse any of them.
[58] The director admitted that the initial assessment depended on the subjectivity of the person doing the marking, but he reiterated that it was not a mathematics exam.
III. Summary of the arguments
A. For the complainant
[59] The complainant based his complaint on s. 77(1)(a) of the Act and alleged that an abuse of authority occurred in the assessment of the candidates’ merit. As corrective measures, among other things, he asked to be placed in the EN-ENG-05 pool or, if required, to have a new assessment marked by an unbiased assessor.
[60] He referred to ss. 30(2)(a) and (b) of the Act, which state the conditions for a merit-based appointment. He recognized that s. 36 of the Act states that the PSC may use any assessment method that it considers appropriate. He said that an appointment process must be fair, transparent, and in good faith, and that once the assessment method is chosen, the manager must comply with and respect the values of fairness and transparency. He referred to Tibbs v. Deputy Minister of National Defence, 2006 PSST 8.
[61] In this case, the complainant argued that during the informal discussions, no specific answers or documents were provided, and that all the relevant documents filed in evidence were provided at the information-sharing meetings.
[62] He submitted that the marking guide contained several criteria but that they were only general. He added that during the discussions, the director was unclear about the comments provided on the assessment criteria.
[63] He admitted that the manager may assess based on general criteria and that there was no problem with that and that not having exact answers was understandable, given the nature of the position being filled. He admitted that the questions might have had several correct answers. However, he argued that without a clear marking grid and without objective factors, an assessment is subjective. He argued that the director did not deny that everything depended on the marker. He relied on Gomy v. Deputy Minister of Health, 2019 FPSLREB 84 at paras. 79 to 83, and stated that the similarity is in the marking and that clearly, the facts are identical. He argued that without a marking grid containing the expected answer components, there was no way to know whether the answers had merit. He added that as in Gomy, the director found it difficult to describe the points that were sought in the answers. He pointed out the vague nature of the different criteria, including in the options and recommendations, and suggested that the option was the subject of the recommendation. He argued that nothing could support how the marks were assigned. He pointed out that only 7 of the 27 criteria indicated where the assessment came from and that for the others, it is unknown.
[64] In response to the respondent’s claim, he said that if it was an overall mark, the marking method was subjective and arbitrary, and that such marking did not respect the PSC’s values. He returned to the fact that twice, the director admitted that the complainant could have received a higher mark, and he questioned why the selection committee did not assign him one.
[65] He referred to Denny v. Deputy Minister of National Defence, 2009 PSST 29 at para. 122, and Chiasson v. Deputy Minister of Canadian Heritage, 2008 PSST 27 at paras. 38 and 39, which deal with bad faith that may or may not involve improper intent or lack of impartiality, both of which would constitute an abuse of authority. Bad faith could also result from negligence or serious carelessness. He went on to state that the fact that the same selection committee assessed all the candidates did not guarantee transparency. He recognized that the Board has control over its process and that he was not asking for the marking to be redone.
[66] The complainant referred to Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10 at paras. 62 to 74, which discusses, among other things, the reasonable apprehension of bias, which would also constitute an abuse of authority. He alleged that as a union steward, he championed the EN-ENG employees and participated in the same union-management consultation committee as did the director, who did not always distinguish his subordinate employee from the union steward. He submitted that as a result, the director would have been biased against him.
[67] He returned to the fact that the director recognized in his testimony that twice, the complainant should have received higher marks and that under paragraph 33 of Tibbs, the assessment errors were more than simple errors because they led to an improper result.
[68] The complainant cited Burke v. Deputy Minister of Department of National Defence, 2009 PSST 3 at para. 51, to support his allegation that the assessment and marking methods made the assessment tool inadequate by failing to provide an objective candidate assessment.
B. For the respondent
[70] The respondent referred to Tibbs, to reiterate that the complainant must prove an abuse-of-authority allegation, and to Portree v. Deputy Head of Service Canada, 2006 PSST 14 at para. 47, to illustrate abuse of authority.
[71] It also cited Lavigne v. Canada (Justice), 2009 FC 684 at paras. 61 and 62, which state that an abuse-of-authority complaint must be based on bad faith or personal favouritism, which it submitted the complainant did not prove in this case.
[72] It referred to Portree to argue that the complainant’s disagreement with his mark did not constitute an abuse of authority.
[73] It referred to Visca v. Deputy Minister of Justice, 2007 PSST 24 at para. 42, to submit that a manager has broad discretion to establish a position’s qualifications.
[74] It cited Jolin v. Deputy Head of Service Canada, 2007 PSST 11 at paras. 25 to 27, to state that under s. 30(2) of the Act, the PSC’s specific duties are to assess whether those appointed meet the essential qualifications. It stated that Jolin submitted that s. 36 of the Act confers discretion with respect to the available methods for assessing candidates and to proceeding with their eventual appointments under s. 30(2).
[75] Referring to the director’s testimony, the respondent explained that Mr. Gilbert prepared the assessment tools, the three-question exam, and the assessment criteria as presented in the assessment guide. It stated that all candidates were subject to the same criteria, they were assessed by the same marker, and the other two selection committee members reviewed the marker’s assessment, to guarantee consistent results.
[76] It said that the exam gave the candidates the latitude to answer based on their experience. It also submitted that the criteria were well established and that they allowed the candidates’ qualifications to be assessed properly while permitting the assessors to use their judgment.
[77] It said that the complainant’s mere rejection of the final result did not amount to wrongdoing, no more than his disagreement amounts to an error or an abuse of authority as indicated in Portree, at paras. 29 and 54.
[78] It reiterated that I must neither reassess the complainant’s answers nor assess the exam; the selection committee was in the best position to do that (see Oddie v. Deputy Minister of National Defence, 2007 PSST 30 at para. 92). It concluded by stating that the selection committee did not abuse its authority. To support its argument, it added Wilkinson v. Deputy Minister of National Defence, 2017 FPSLREB 1 at para. 70.
[79] Referring to Gignac and to Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369 at 394 (“Committee”), the respondent argued that none of the facts support finding a reasonable apprehension of bias. It stated that a well-informed observer would not conclude that bias was present in this case. It submitted that the selection committee did not penalize the candidates for the number of pages in their briefing notes, although it did account for clarity and conciseness. Also, the briefing note format, which was based on the template, required a section presenting the proposed options.
[80] It submitted that although the director admitted that the complainant should have received two more marks than he did, he still would have failed, and therefore, those minimal errors did not in themselves constitute an abuse of authority as defined in Portree.
[81] It argued that there was no evidence of a conflict between the complainant and the director and that the complainant never filed a grievance against the director.
[82] In conclusion, it argued that there was no abuse of authority, and it asked that the complaint be dismissed. It brought up distinctions between the caselaw that the complainant submitted for Burke, Denny, Gomy, and Chiasson.
IV. Reasons
[83] Each party set out two questions for me to consider. It remains that the issue is to determine whether the respondent contravened s. 77(1)(a) of the Act and abused its authority in the application of merit in the advertised appointment process.
[84] For reference, I have cited these relevant sections of the Act:
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[85] This complaint is based on ss. 77(1)(a) and 30(2)(a) of the Act, and the complainant asked these two questions: 1) Were the assessment method and tool transparent and consistent? 2) Did the assessment and marking methods make the assessment tool inadequate?
[86] The respondent set out these two questions: 1) Did the selection committee abuse its authority in its assessment method? 2) Was it biased?
[87] The complainant referred to Gomy to argue that without a marking grid containing the required answer components, nothing is clear. However, I do not share his opinion on the marking grid. The marking grid, called the “assessment/marking guide” in the documentary evidence, contains all the qualifications, expressed as abilities and personal-suitability factors, used in the assessment. All the qualifications include several assessment criteria that the marker and then the selection committee relied on to reach a final assessment of the candidates.
[88] The director testified that it was not a mathematics exam and that the candidates had the latitude required to analyze the situations proposed in the exam, formulate options, and, ultimately, make recommendations. Furthermore, in his arguments, the complainant admitted that given the nature of the positions to be filled, there were several acceptable answers.
[89] Analyzing the guide reveals many assessment criteria that I believe allow a proper assessment of the candidates’ responses.
[90] I take as an example from the guide ability A1, “[translation] Ability to negotiate to find realistic and effective solutions”. The first assessment criterion reads as follows: “[translation] Considers more than one option in the briefing note”. The marker considered the complainant’s briefing note and noted the following: “[translation] There are no options. All the actions are along the same lines.” He assigned 0 out of 4 marks. Although that mark was disappointing for the complainant, the director’s testimony clearly supported it; he distinguished between the concepts of option and recommendation.
[91] The same is true for each qualification. The complainant expressed why he thought that his answers were all good, and the director explained why the complainant obtained the marks he did. When assessing the qualifications and applying the assessment criteria, the marker provided enough comments to demonstrate that the assessment was not arbitrary but, rather, based on the criteria. It is clear that the complainant disagreed with how his exam was assessed, but my role is not to reassess his answers or change his marks. My role is to determine whether abuse of authority occurred, among other things, in the candidates’ assessments because “... the evaluation tool ... did not entirely ensure the transparency and fairness that are needed in internal appointment processes” (see Gomy, at para. 84). I conclude that the exam, guide, and assessment criteria were well suited to a fair and equitable candidate assessment. It is not a situation as in Gomy, in which he did not have a marking grid beforehand, in which no one else took part in marking the exams, and in which the marking method would not allow an observer other than the marker to distinguish precisely the answer components that had merit compared to others.
[92] The complainant argued that the lack of expected answers in the assessment guide resulted in a high degree of subjectivity for the marker, which led to an abuse of authority.
[93] The complainant based his argument on Burke. The nature of the technical questions raised in Burke differ entirely from those in this case. In Burke, the intent was to assess the candidates’ experience using submarine underwater weapons systems. However, the selection committee awarded “... an acceptable rating of three for multi-platform ... experience, without having any submarine experience.” Therefore, the Public Service Staffing Tribunal (“the Tribunal”) concluded that the respondent did not assess that essential qualification. Those are not the circumstances of this case.
[94] In this case, the candidates had to respond to management scenarios for which no definite answer was expected. However, a series of criteria was established to help assess the answers. The director testified that it was not a science or mathematics exam with only one right answer. As stated earlier, the complainant admitted that the employer may make an assessment based on general criteria and there were no exact answers because of the nature of the positions to be filled; therefore, several answers were acceptable. In the circumstances, the complainant did not demonstrate on the preponderance of the evidence that the alleged subjectivity constituted an abuse of authority by the marker that would justify my intervention.
[95] The complainant referred to Denny and Chiasson, which discuss the concept of bad faith. He also cited Gignac to support the allegation that the director was biased against him because he was a union steward. However, in this case, it is not enough to allege bad faith, negligence, or serious carelessness; it must be proven on the preponderance of the evidence. Additionally, Gignac (at paragraph 73) quotes the Supreme Court of Canada in Committee as follows:
73 ...
... [T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. ... [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the adjudicator], whether consciously or unconsciously, would not decide fairly?”
[96] The fact that the complainant was a union steward should not matter one way or another, meaning favouring or hindering him, in an appointment process. In this case, the evidence did not demonstrate that the director harboured any ill feelings toward the complainant. Although I considered the different examples of correspondence that he filed, I conclude that they have little weight in this dispute. The examples came solely from him and were about engineer-classification issues in the DRDC group. There are no replies from the director that would support the complainant’s arguments that the director became cold toward him and uncooperative, their relationship deteriorated, or he became an irritant for the director. In addition, the complainant’s personal letter dated January 22, 2019, and about his health does not address his relationship with the director.
[97] In fact, the only indication of ill feelings allegedly came from the second informal discussion. The director testified that during that discussion, the complainant asked questions in an aggressive tone. Apart from that occurrence, everything points to a respectful working relationship between the complainant and the director, both in their day-to-day work and when they participated in union-management meetings. In conclusion, the complainant did not convince me that a person informed about these events would conclude that the director or a selection committee member was biased against him.
[98] He alleged that the errors made, and that the director admitted to, with respect to the two marks that should have been higher than they were are serious enough that they would have led to an improper result within the meaning of Tibbs. In this case, the preponderance of the evidence demonstrates that even had the complainant received those two higher marks, the outcome would have been the same; he still would have failed. In the circumstances, I conclude that those errors and the lack of impact on the outcome of the complainant’s application do not constitute an abuse of authority. I reject this allegation.
[99] Tibbs reminds us that a complainant has the onus of demonstrating an alleged abuse of authority. In Portree, the Tribunal states as follows at paragraph 47:
[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 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.
[100] Lavigne, at paras. 61 and 62, indicates as follows:
61. Therefore, a complaint of abuse of authority will be deemed founded where bad faith or personal favouritism was established. The principle of bad faith requires an element of intent.
62. Abuse of authority requires more than error or omission, or even improper conduct.
[101] Portree, at para. 54, states as follows:
[54] The fact that the complainant disagrees with the assessment board’s rating of her answer on Decisiveness and the fact they did not clarify her answer does not amount to abuse of authority. This is a “judgment call” by the assessment board which was in the best position to determine if it needed further clarification on that specific question during the interview.
[102] Visca, at paras. 42 and 43, states as follows that a manager has broad discretionary power to establish a position’s qualifications:
[42] Broad discretion is given to managers under subsection 30(2) of the PSEA to establish the necessary qualifications for the position they want to staff and to choose the person who not only meets the essential qualifications, but is the right fit. Similar discretion is provided under section 36 of the PSEA for those with staffing authority to choose and use assessment methods to determine if the person meets the established qualifications. The Tribunal has discussed the discretion provided by section 36 with respect to the choice of assessment method in Jolin v. Deputy Head of Service Canada et al., [2007] PSST 0011, at paragraphs 26 to 28.
[43] Weighting the merit criteria and using cut-off scores based on the performance of the candidates are methods that fall within the broad discretion given to managers under the PSEA. There is flexibility for managers to determine which criteria are more important than others for a position at the time of the selection process....
[Emphasis added]
[103] Jolin (at paragraphs 25 to 27) states that under s. 30(2) of the Act, the PSC’s specific duties are to assess whether those to be appointed have the essential qualifications. Jolin states that s. 36 of the Act confers the discretionary power to choose from the available methods for assessing candidates and to proceed with their eventual appointments under s. 30(2) of the Act.
[104] According to the evidence, the director prepared the assessment tools, all the candidates were subjected to the same criteria and were assessed by the same marker, and the other two selection committee members reviewed the assessments, to ensure consistency in the results.
[105] My role is not to reassess the complainant’s answers but to determine whether abuse of authority occurred when his candidacy was assessed, on the preponderance of the evidence. In the circumstances, I conclude that he did not demonstrate on the preponderance of the evidence that abuse of authority occurred in the assessment of his candidacy. I reject these allegations.
[106] Therefore, I conclude that the complainant did not establish that the respondent contravened s. 77(1)(a) of the Act and abused its authority in the application of merit in the advertised appointment process.
[107] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V. Order
[108] The complaints are dismissed.
February 27, 2023.
FPSLREB Translation
Guy Grégoire,
a panel of the Federal Public Sector
Labour Relations and Employment Board