FPSLREB Decisions

In 2021, the Board issued a decision in which it allowed a staffing complaint in part that the complainant had made (Turner v. Deputy Head (Royal Canadian Mounted Police), 2021 FPSLREB 52 (“Turner FPSLREB”)) – in that decision, the Board issued a declaration of abuse of authority but declined to order the appointments revoked – the Federal Court of Appeal granted the judicial review with respect to the Board’s decision dealing with only the remedy and remitted the remedial matter back to the Board for redetermination – this decision addresses the remedy issue, as the Board is bound by the previous finding of abuse of authority in the application of merit – the respondent raised an objection, arguing that the remedial issues had become moot, in part because the appointees no longer occupied the positions at issue – the Board indicated that the findings in Turner FPSLREB supported a declaration of abuse of authority in the application of merit, and neither party suggested that a similar declaration should not be issued again – as such, the Board declared that abuse of authority occurred in the application of merit in the appointments of both appointees – the Board stated that revoking an appointment is an additional and important remedial tool available to it and disagreed with the respondent’s assertion that an order revoking the appointments would automatically be moot because both appointees had since moved on – the Board’s jurisprudence has held that in some situations, the appointee may no longer occupy the position at issue, and that revocation would not be moot but would constitute an appropriate corrective action – after finding that revoking the appointments in this case would not be moot, the Board considered whether doing so would be an appropriate remedy in the circumstances of this case – it reviewed the jurisprudence and found that generally, revocation is found appropriate when the appointee does not meet the essential qualifications, as well as in other cases, involving personal favouritism, a reasonable apprehension of bias, or a serious flaw in the appointment process – it also examined cases in which revocation was not ordered – it concluded that it had to determine whether revocation would constitute an appropriate corrective measure based on the facts as of when the abuse of authority occurred and the complaint was made, not on the circumstances at adjudication – therefore, based on the jurisprudence, the facts of the case, the parties’ submissions, and the findings in Turner FPSLREB, the Board concluded that an order revoking the appointments should be made – consequently, the Board declared that an abuse of authority occurred and ordered the appointments revoked.

Order and declaration made.