Date: 20240411
Files: 771-02-41884 and 41885
Citation: 2024 FPSLREB 52
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Between
Michele Mousseau Bailey
Complainant
and
Deputy head
(Department of Indigenous Services)
Indexed as
Mousseau Bailey v. Deputy Head (Department of Indigenous Services)
Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Stacey Mirowski, counsel
For the Respondent: Renuka Koilpillai, counsel
For the Public Service Commission: Louise Bard, senior analyst
REASONS FOR DECISION |
I. Overview
[1] These complaints are against two non-advertised appointments of nurses in Indigenous Services Canada (“ISC”). The complaint in Board file number 771-02-41884 is about an acting appointment that ran from March 5, 2020, to March 21, 2021; the complaint in Board file number 771-02-41885 is about an indeterminate appointment for which notification was provided on June 26, 2020. I will be referring to these as the “acting appointment” and “indeterminate appointment” in this decision, and the appointees as the “acting appointee” and “indeterminate appointee” respectively.
[2] Michele Mousseau Bailey (“the complainant”) complains about the decision to use a non-advertised process for both appointments and the assessment of merit in both appointments.
[3] These two complaints raise the following issues, for which I provide short answers:
1) Did the decision to use a non-advertised process in both appointments amount to an abuse of authority? Specifically:
a) Did the respondent adequately justify the decision to use a non-advertised process? Yes. Non-advertised processes are just as valid as advertised processes and do not require special justification. In any event, the use of non-advertised processes in this case did not circumvent the merit principle.
b) Was the decision to use a non-advertised appointment process without considering an inventory problematic? No. There is no legal requirement to exhaust an inventory before using a non-advertised appointment process, and the respondent has a reasonable explanation for not using an inventory in this case.
2) Was there bias or personal favouritism? No. The complainant has not demonstrated the existence of bias or personal favouritism.
3) Is a Master of Business Administration (MBA) degree a master’s degree with “... an acceptable specialization in nursing, nursing service administration, nursing education or some other specialty relevant to the position”? Yes. The hiring manager reasonably concluded that an MBA was “relevant to” the acting position.
4) Did the respondent abuse its authority when assessing whether the acting appointee had “[s]ignificant experience providing direct primary care or public health services” and “[k]nowledge of issues related to the delivery of health care services and programs for Indigenous populations” by assessing those qualifications globally (i.e. by combining their assessment with the assessment of other qualifications)? No. I have concluded that there was no global assessment and that the hiring manager assessed each of the qualifications for the position.
5) Did the respondent abuse its authority when assessing whether the indeterminate appointee had “[e]xperience in providing strategic policy advice to senior officials on primary care issues”, “[k]nowledge of the principles of primary care approaches”, and “[k]nowledge of health programs management principles and techniques” by assessing those qualifications “globally”? No. As with the acting appointment, I have concluded that there was no “global” assessment and that the hiring manager properly assessed each of the qualifications for the position.
6) Does professional registration as a nurse in British Columbia constitute “[a] valid license/registration to practice nursing in the province or territory of employment” for a position located in the National Capital Region when the appointee works remotely from British Columbia? Yes. While the position was located in the National Capital Region, the acting appointee lived in and worked from British Columbia on a telework agreement. Therefore, her province of employment was British Columbia for the purposes of this appointment process.
[4] In light of my answers to those issues, I have dismissed these complaints.
[5] This decision is divided into eight parts:
· Part I: this overview.
· Part II: the underlying factual context for these complaints. This will include a short description of the work of ISC’s Office of Primary Health Care, where the two positions are situated, an overview of the process followed for the two appointments, and the complainant’s evidence about her work and career.
· Part III: issue 1 about the decision to use a non-advertised process — namely, whether the decision was adequately explained and whether the respondent abused its authority by not using an inventory of candidates.
· Part IV: issue 2 — the allegation of bias or personal favouritism.
· Part V: issue 3 — whether an MBA was relevant to the acting appointment.
· Part VI: issues 4 and 5 — whether the other qualifications were properly assessed.
· Part VII: issue 6 — the work location of the acting appointee.
· Part VIII: my conclusion about other issues that arose in these complaints that do not fit neatly under a particular heading.
[6] Finally, the Public Service Commission (PSC) filed short written submissions about some general principles but did not appear at the hearing and did not take a position on the merits of the complaints. I considered those submissions, in particular about the broader principles raised by these complaints, but will not cite them further in this decision.
II. Underlying facts of the complaints
A. The Office of Primary Health Care
[7] These complaints are about two appointments in the Primary Health Care Directorate, which is also called the Office of Primary Health Care (the term I will use in this decision), within ISC’s First Nations and Inuit Health Branch.
[8] The Office of Primary Health Care was a directorate of approximately 150 employees in late 2019 and early 2020 when the appointments challenged in these complaints were made. It had multiple divisions. One was the Primary Health Care Services Division. That division had a Director (at the NU-CHN-08 classification) with 3 reporting managers (at the EC-07 classification), each of whom was responsible for managing a unit. The unit for both appointments was called the Primary Care Policy and Practice Unit. That unit dealt with a number of issues related to 51 nursing stations in First Nations communities across the country, including the education of nurses, quality assurance programs, and general oversight and administration.
[9] Ms. Buckland described that there was a lot of turnover in the Office of Primary Health Care between 2018 and 2020.
[10] In 2018, the Director of the Primary Health Care Services Division moved to a position responsible for Jordan’s Principle. For context, Jordan’s Principle is named after Jordan River Anderson of the Norway House Cree Nation who passed away at the age of five after spending his entire life in a hospital. He could have gone to a specialized foster home close to his medical facilities, but the federal and provincial governments argued over who should pay for his foster home costs. In recognition of Jordan, Jordan’s Principle provides that when a government service is available to all other children, but a jurisdictional dispute over services to a First Nations child arises between levels of government or departments within the same government, the government department of first contact pays for the service and can seek reimbursement from the other government or department after the child has received the service. The complainant described one of the implications of Jordan’s Principle as that the government is required to process requests for child medical services in a timely fashion. The Canadian Human Rights Tribunal has set out this rule in a series of decisions, including First Nations Child & Family Caring Society of Canada v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2017 CHRT 35.
[11] When the Director of the Primary Health Care Services Division moved, a series of vacancies developed as the position was backfilled during her absence. Somebody acted in the Director position. This led to a vacancy in an EC-07 position as the manager of the Primary Care Policy and Practice Unit. For a time, two employees took turns acting in that position. Ultimately, one of those employees — Kate Thompson — was appointed to act in that position for a longer-term basis.
[12] The first complaint is about an acting appointment that backfilled Ms. Thompson’s substantive position. This position was, broadly speaking, responsible for policies about quality assurance in nursing stations. It was classified at the NU-CHN-07 group and level.
[13] The second complaint is about an indeterminate appointment to another NU-CHN-07 position. That position was responsible for education for the nurses working in nursing stations. The incumbent of that position left for another position on what was planned to be a temporary basis. The position was backfilled on an acting basis starting in the summer of 2018. That employee’s acting appointment was extended in February 2020 for one year (it was scheduled to end in February 2021). In the spring of 2020, the incumbent permanently left the position. The employee who had been acting in the position was appointed permanently on June 26, 2020.
[14] Ms. Buckland described both positions as individual contributor positions, meaning that the occupants of those positions did not supervise other employees.
[15] Ms. Buckland also testified that she ran an advertised external appointment process in 2018 for a position at the NU-CHN-07 classification that did not result in a very large pool of qualified candidates when it was completed in early 2019. Ms. Buckland and Ms. Thompson also described that ISC ran another advertised external process in December 2020 for NU-CHN-07 positions and this process concluded in late 2021 or early 2022.
B. The complainant
[16] The complainant is a First Nations woman and a member of the Fort William First Nation. She has been a registered nurse in Ontario since 1997, working in both the federal and provincial health care systems. Her work included nursing in 12 different First Nations communities during her career, as well as working in a number of provincial hospitals in Ontario. She has a bachelor’s degree in nursing from Lakehead University and a Masters of Public Health degree from the University of Waterloo. She has other professional credentials (including a LEAN greenbelt designation and a diploma in health administration), as well as specialized experience and training in health care areas that she described as particularly relevant for members of First Nations.
[17] The complainant was recruited to rejoin the federal public administration on July 4, 2017. She was hired to be a policy advisor in the Population and Public Health directorate within the Office of Primary Health Care. This was originally a four-month job, which gave her the opportunity to meet other senior leaders in the First Nations and Inuit Health Branch. At the end of that term, she was hired on an indeterminate basis as a nurse at the NU-CHN-06 classification in the Communicable Disease Control division.
[18] In 2018, the complainant applied for and was accepted into what was then called the Aboriginal Management Development Program, now called the Indigenous Management Development Program. The normal path of that program is for successful candidates to complete French language training for up to a year and then go on two 1-year assignments that provide managerial experience. In the complainant’s case, she was asked to move immediately to a managerial role and put off the French language training. The complainant worked in the National Coordination Office of the division responsible for Jordan’s Principle until February 2019. Once her time in that position was done, she moved to the Assistant Deputy Minister’s office as a policy analyst in February 2019. While the complainant did not mention her classification in that position during her testimony, her résumé (Exhibit C-1, tab 12) discloses that she occupied positions at the EC-07 group and level from February 2019 through and well beyond the dates of the impugned appointments.
[19] The complainant described her career objectives within the federal government. To further those interests, she added her name to inventories of employees interested in new opportunities within ISC. I will discuss the consequences of her career interests and these inventories later in this decision.
C. Overview of the two appointments
[20] As I mentioned earlier, the acting appointment challenged in the first complaint was used to backfill Ms. Thompson’s substantive position while she in turn acted as the Director of the Primary Health Care Services Division. The position had been vacant while Ms. Thompson acted as the Director. Ms. Thompson testified that by the summer of 2019, the position had been left vacant longer than had been expected. She was, in essence, keeping an eye on her old job while acting as the Director. Therefore, she began to take steps to backfill the position on an acting basis.
[21] Ms. Thompson began her quest by going to the pool of candidates available from the 2018 selection process that concluded in January 2019. There was some discrepancy in the evidence about who was left in that pool at the time these appointments were made. Ms. Buckland testified that there was one qualified candidate remaining in the pool when the acting position was filled; that person was offered the job but declined because they lived in Montréal, Quebec, and did not want to move. Ms. Thompson testified that there were three qualified candidates remaining in the pool. She offered the job to two of them, and they declined. The third was not suitable for the position at that time; Ms. Thompson stated that she had talked to the third person previously, but they lived in Montréal and did not have the experience necessary.
[22] I have not resolved this discrepancy as it is not relevant to my disposition of this complaint. The important fact is that Ms. Thompson tried to use the pool.
[23] Ms. Thompson then approached the acting appointee. The acting appointee had experience with the subject matter of the position. She lived in British Columbia and had teleworked when she worked with ISC. In 2018, the acting appointee left her position on an interchange agreement with the British Columbia First Nations Health Authority. She was still an ISC employee while she was on the interchange. Ms. Thompson approached her in December 2019 about returning from her interchange into the acting position. She was interested. Ms. Thompson prepared the “Statement of Merit Criteria” for the position and decided to proceed by way of a non-advertised process. She held an informal interview with the acting appointee, reviewed some of her previous work, and discussed her work with her previous manager. Ms. Buckland gave Ms. Thompson approval to hire the appointee on January 28, 2020. The appointment was made on March 5, 2020, and lasted just over a year, to March 21, 2021.
[24] The indeterminate appointment followed an even more straightforward process. The indeterminate appointee was already acting in the position. Once the position was vacated permanently, Ms. Thompson moved quickly to appoint the indeterminate appointee on a permanent basis. Ms. Thompson knew that the indeterminate appointee had the experience required for the position. She testified that the position was critical and that it could not wait for a permanent, advertised appointment process. She had an informal interview with the indeterminate appointee and assessed her existing work and, on that basis, obtained approval to make the appointment on May 29, 2020. The “Notice of Consideration” went out on June 9, 2020, and the appointment was finalized on June 26, 2020.
III. Did the decision to use a non-advertised process in the acting appointment amount to an abuse of authority?
A. Legal rules about a non-advertised process and an abuse of authority
[25] The Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA) contains the following two provisions:
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1. Legal principles about whether a non-advertised process is inferior to an advertised process
[26] One of the most significant differences between the parties was whether a non-advertised process is inherently or presumptively improper. The complainant’s submissions were premised on an advertised process being the presumptive appointment process and that a non-advertised process must be justified.
[27] I begin this section of my decision by acknowledging the broader policy debate over the appropriateness of non-advertised appointment processes. There are a wide range of opinions held about non-advertised appointment processes. For example, the Report of the Review of the Public Service Modernization Act, 2003 explained that the Commission’s view at the time was that advertised appointment processes should be the standard practice and a non-advertised appointment process required a “rigorous” justification. That same report noted by contrast that “[m]any stakeholders expressed the view that the Commission’s position on non-advertised appointment processes is overly restrictive and inconsistent with the discretion afforded in the legislation.” (see Treasury Board of Canada Secretariat, Report of the Review of the Public Service Modernization Act, 2003, 2011). The Standing Committee on Government Operations and Estimates June 2019 report on federal public service hiring recommended that all positions be advertised externally because the entire Canadian public should be allowed to apply to every position (see Canada, Parliament, House of Commons, Standing Committee on Government Operations and Estimates, Improving the Federal Public Service Hiring Process: Report of the Standing Committee on Government Operations and Estimates, June 2019). Finally, in its 2021 review of its revised 2016 Appointment Policy, the Commission noted that non-advertised appointment processes increased by 170% in the 4-year period following the implementation of the 2016 Appointment Policy but then went on to state that it was “... unable to elaborate on whether this should be viewed as a negative or positive consequence of the 2016 Appointment Policy” (see Public Service Commission, Review of the Implementation of the New Direction in Staffing, August 10, 2021).
[28] The Federal Public Sector Labour Relations and Employment Board’s (“the Board”, which in this decision refers to the current incarnation and any of its predecessors) role is not to weigh in on whether non-advertised appointment processes are good or bad. For the purposes of this decision, I am agnostic on the subject of non-advertised appointment processes. I have treated this as a legal question, not a human resources question.
[29] While the complainant did not cite any authorities for the proposition that there is a presumption in favour of advertised appointment processes, she did cite Beyak v. Deputy Minister of Natural Resources Canada, 2009 PSST 35 and Hunter v. Deputy Minister of Industry, 2019 FPSLREB 83 as two examples in which the Board found that the choice of a non-advertised process was an abuse of authority. In Beyak, at para. 151, the Board was critical of the department for not carefully considering the written rationale for a non-advertised process, although the actual abuse of authority occurred in that case because of deceitful practices by the hiring managers to deprive other employees of recourse against the appointment as described at paragraphs 133 to 147 of that decision. In Hunter, the Board was also critical of using a non-advertised appointment process because it was “the easiest way to fill the position” (at paragraph 91), but the abuse of authority was largely about the fact that the hiring manager did not prepare a rationale for using a non-advertised process before making the appointment and, instead, created a rationale after a complaint had been made, tried to avoid disclosing the rationale, and then tried to pass it off as having predated the appointment.
[30] Neither of those two cases state that a non-advertised process is presumptively wrong or improper.
[31] The respondent cited Bérubé-Savoie v. the Deputy Minister of Human Resources and Skills Development Canada, 2013 PSST 2, which states this at paragraph 24:
24 The mere fact that the respondent chose to conduct non-advertised appointment processes to staff these positions is not an abuse of authority in itself. There is no preference given to advertised processes over non-advertised ones in the PSEA. Section 33 of the PSEA clearly states that the deputy head, as the PSC’s delegate, has the discretion to choose between these two types of processes.
[32] This statement is fully consistent with the Supreme Court of Canada’s decision in Canada (Attorney General) v. Kane, 2012 SCC 64 at paras. 6 and 7, which read as follows:
[6] ... The Tribunal acknowledged Mr. Kane’s argument that advertising the position constituted abuse of authority because the PM-06 position was not a new position, but rather a reclassification. However, it held that regardless of whether the position was new or old, Service Canada was entitled to advertise the position, with the result that the alleged newness of the position did not give rise to an obligation to advertise the position. The gravamen of the complaint — that the choice of an advertised appointment process constituted an abuse of authority — was thus addressed by the Tribunal and resolved by its interpretation and application of the PSEA, its home statute. The Tribunal stated:
There is nothing in either the PSEA or the [Public Service Employment Regulations, SOR/2005-334] which requires a deputy head to utilize a particular selection process depending on whether the position at issue is either a new or reclassified position. On the contrary, section 33 of the PSEA clearly provides that the deputy head has the discretion to use an advertised or a non-advertised appointment process. [para. 65]
[7] This proposition, which has not been assailed as unreasonable, was sufficient to dispose of Mr. Kane’s complaint, and made it unnecessary to consider whether the PM-06 position was a new position. The question of whether the PM-06 position was a new position or a reclassification of an old position was not relevant to the ultimate issue, and had no effect on the reasonableness of the decision of the Tribunal.
[33] While the complaint in Kane was about the use of an advertised appointment process instead of a non-advertised one (i.e., the opposite to these complaints), the point remains that advertised and non-advertised processes are both equally valid.
[34] Additionally, the Board confirmed this rule recently in Hutlet v. Deputy Head (Department of National Defence), 2023 FPSLREB 73 at para. 78, stating that:
[78] The respondent has the discretion to choose an advertised or a non-advertised appointment process when it makes an appointment. While the legislation does not specify when or how a choice between an advertised or a non-advertised process is to be made, the jurisprudence suggests that a complainant must present evidence to demonstrate an improper motive, bad faith, or favouritism, for example, to establish an abuse of authority based on the choice of process ....
2. The ISC’s staffing framework does not state that a non-advertised process is risky or inferior to an advertised process
[35] The complainant argues that the ISC’s “Staffing Framework” (Exhibit C-1, tab 10) identifies a non-advertised process as risky and, therefore, requiring justification. By way of background, s. 15 of the PSEA permits the PSC to delegate its appointment-making powers to a deputy head (who in turn may sub-delegate it). The PSC has delegated its appointment-making powers through the “Appointment Delegation and Accountability Instrument”. One of the conditions of this delegated authority set out in that instrument is that deputy heads establish direction, through policy, planning, or other means, on the use of advertised and non-advertised appointment processes. The ISC’s Staffing Framework is that direction for appointments within ISC, as described in section 2.1 of Module 2 (Exhibit C-1, tab 10, page 22).
[36] During closing argument, the complainant was unable to direct me to any specific passage in the ISC’s Staffing Framework that supported her submission. She asked that I go to the pages discussed by the witnesses during their evidence and that I review the ISC Staffing Framework carefully. I have done so as described below. The ISC’s Staffing Framework does not state that a non-advertised process is risky and therefore must be justified.
[37] The ISC’s Staffing Framework has a heading called “Risk Management”, under which it reads (Exhibit C-1, tab 10, page 7):
ISC’s Staffing Framework focuses on a risk management approach which allows managers to assess the impact of their decision while taking into consideration their operational needs in the context of the legislated requirements which governs [sic] staffing within the Public Service. Staffing risks are measured based on future uncertainties that may arise in placing the right person, at the right time, in the right position to achieve program performance goals and objectives within defined costs, schedule and performance constraints.
[38] There is nothing in that passage suggesting that non-advertised processes are inherently risky.
[39] Next to that passage, there is another passage (enclosed within a graphic of a thought bubble), which reads:
Reminder: Risks in staffing not only relate to the type of staffing action. They also encompass risks on the delivery of business, perceptions and impact of the staffing decision on the team environment, risks of complaints to the FPSLREB or investigations conducted internally or by the PSC, as well as risks for the sub-delegated manager’s own sub-delegation and the Deputy Minister’s delegation.
[Emphasis in the original]
[40] There is nothing in that passage suggesting that non-advertised processes are inherently risky.
[41] The ISC’s Staffing Framework then contains a “Module” about the choice of appointment process (i.e., whether to use an advertised or a non-advertised process). With all due respect to the drafters of this Module, it is composed of bureaucratic catchphrases and empty platitudes. The closest that this Module comes to addressing this issue is under the subheading “Risk Analysis” which reads as follows (Exhibit C-1, tab 10, page 23):
Sub-delegated managers have the authority to select either an advertised or non-advertised appointment process. They are encouraged to engage in a strategic discussion with their Human Resources Advisor at the early stages of the process to ensure that the factors which will influence the risks associated with a particular staffing strategy are taken into consideration in making the choice of the appointment process.
...
[42] There is nothing in that passage suggesting that non-advertised processes are inherently risky. On the contrary, the Module suggests that there are risks for both types of selection process.
[43] Finally, the ISC’s Staffing Framework has a Module entitled “Risk-Based Staffing Approach” that begins as follows (Exhibit C-1, tab 10, page 39):
...
Staffing risks are measured based on future uncertainties that may arise in placing the right person, at the right time, in the right position to achieve program performance goals and objectives within defined cost, schedule and performance constraints. A risk management approach in staffing allows managers to assess the impact of their decision while taking into consideration their operational needs in the context of the legislated requirements which govern staffing within the public service.
...
[44] I have read this passage dozens of times, trying to read past what I called earlier the bureaucratic catchphrases and empty platitudes, and I still have no idea what risk is being identified — whether it is the risk of not putting the right person in the job in a timely fashion or the risk of putting the right person in the job in a timely fashion but having something happen later (such as a complaint to the Board) that upends that decision. However, the Module goes on to divide staffing actions into three categories (Exhibit C-1, tab 10, pages 41 and 42): low risk, medium risk, and high risk. Internal and external advertised appointment processes are listed as low risk, with some exceptions that are medium risk or high risk. Non-advertised appointment processes are also listed as either low, medium, or high risk, depending on the reason for using a non-advertised process or the nature of the appointment. The acting appointment falls in the low-risk category (a non-advertised appointment following a recent advertised process that produced a limited number of qualified candidates), as does the indeterminate appointment (the appointment of a person who self-identifies as a member of a designated employment equity group). Regardless of what the Module means by risk, these two appointments were low risk.
[45] Having completed the careful review urged on me by the complainant, I have not identified anything in the ISC’s Staffing Framework stating that the two impugned appointments were risky.
3. A non-advertised process is not inferior to an advertised process
[46] Even if the ISC’s Staffing Framework characterized the two impugned appointments as risky, I still would not agree with the complainant that a non-advertised process is presumptively worse than an advertised process and, therefore, must be justified. I say this for three reasons.
[47] First, I am not bound by what is set out in the ISC’s Staffing Framework, even if it did state that advertised appointment processes are preferable to non-advertised ones. I am bound to follow the PSEA and what the Supreme Court of Canada said in Kane, not what the drafters of the ISC’s Staffing Framework said.
[48] Second, nothing in the ISC’s Staffing Framework states that advertised processes are better than non-advertised processes. Simply listing most advertised processes as low risk, versus non-advertised processes being a combination of low, medium, and high risk, is not clear enough language to mean that advertised appointment processes are preferable to non-advertised ones.
[49] Third, I reject the complainant’s proposition that labelling something as “risky” means that it is worse or requires greater justification. Risk in hiring people is not inherently bad. The PSEA lists eight purposes in its preamble, one of which is “Canada will also continue to gain from a public service that strives for excellence ...”.
[50] Excellence in hiring requires risk-taking, at least some of the time.
[51] Therefore, I begin with the premise that there is nothing inherently wrong with a non-advertised process and that it is no better or worse than an advertised process.
B. The rationale for using a non-advertised process
[52] The complainant submits that the respondent abused its authority in the choice of a non-advertised process because it did not provide a sufficient justification for that decision. As I have just explained, a non-advertised process is no better or no worse than an advertised process. There should be some explanation for selecting either process, as the complete absence of an explanation is a strong indicium of bad faith or other form of abuse of authority. However, it is not the Board’s role to second-guess managers in their decisions (see Myskiw v. Commissioner of the Correctional Service of Canada), 2018 FPSLREB 70 at para. 32), so I will not second-guess the merits of that explanation.
[53] The complainant submits that the explanation for using a non-advertised process for both positions was expediency. The complainant relies upon Hunter for the proposition that expediency is an insufficient justification for a non-advertised process, in particular paragraph 91 of that decision, which reads:
[91] I am left to conclude that what really drove the decision making in this case was the hiring manager’s initial assertion, on June 14, 2016, that the non-advertised appointment process was simply “the easiest way to fill the position” and that rather than helping him really understand the appointment process, the respondent’s HR advisor used the increased policy flexibility offered through the New Directions in Staffing framework to offer the manager justification for [sic] use of a non-advertised appointment process, in spite of the series of errors and omissions. This might have met the goal of “efficiency” incorporated into ISED’s Staffing Management Policy, but it is harder to see how it reconciles with the goal of “staffing integrity” in that policy or the principles of fairness and transparency in the PSEA.
[54] The complainant overstates the impact of Hunter, which (as I have stated) was about a hiring manager who got caught trying to cover their tracks. The onus is not on the respondent to justify the decision to use a non-advertised process. Rather, “... the onus is on the party that alleged bad faith to demonstrate that the choice of appointment process was based on reasons other than finding a person who met the essential criteria for the position to be filled” (see D’Almeida v. Royal Canadian Mounted Police, 2020 FPSLREB 23 at para. 57). The complainant has not met this onus.
[55] Both Ms. Buckland and Ms. Thompson explained that the decision to use a non-advertised process for the acting position was the pressing need to fill the positions coupled with the inability to fill them using an existing pool of candidates. For the acting appointment, the need was pressing as, in essence, Ms. Thompson had to do two jobs at once and needed her old position backfilled while she acted in the manager’s role. Ms. Buckland also confirmed that not filling the position put patients at risk. Ms. Thompson tried to use an existing pool to fill the position, but when that did not work, she used a non-advertised process. Considering the history of advertised processes taking over a year to complete, I agree with Ms. Thompson that it made no sense to run another advertised process to fill a one-year acting appointment.
[56] I want to state that I was alarmed to hear that the indeterminate appointment processes (both in 2018-19 and 2021-22) took over a year to complete. Ms. Buckland was not pressed to explain why that was so. My decision in this case should not be treated as a precedent suggesting that lengthy advertised appointment processes automatically explain the use of a non-advertised appointment process. The solution to dilatory advertised appointment processes is not to bypass them — the solution is to make them work faster.
[57] For the permanent position, the indeterminate appointee had already been acting in the position for over a year, and her acting appointment was not scheduled to end until February 2021. Ms. Thompson testified that the successful candidate had a background in nursing education, had already demonstrated her skills and ability in the education file, and was a good fit for the job. Ms. Thompson also mentioned the difficulty running an advertised process in the middle of the COVID-19 pandemic (particularly for nurses) and the fact that the appointee self-identifies as an Indigenous nurse, I concluded from her testimony that the knowledge that the appointee could do the job was the predominant reason for the decision. Similarly, Ms. Buckland testified to a level of urgency in filling this position; however, she also admitted that she would have followed Ms. Thompson’s advice and that she testified with the benefit of hindsight.
[58] While Ms. Thompson’s predominate reason for using a non-advertised appointment process was that she appointed someone she knew could do the job, she had other reasons too. I have concluded that her reasons for using a non-advertised appointment process do not indicate an abuse of authority because those operational reasons were reasonable in the circumstances.
[59] Finally, the complainant argues that the absence of a formal, written “risk analysis” was an abuse of authority. The ISC’s Staffing Framework requires a “risk analysis” only for a high-risk appointment as defined in that framework; as I said earlier, the two appointments were low risk, according to that framework. The failure to prepare a document required by the ISC’s Staffing Framework is not an abuse of authority; however, even if it were, there was no obligation for Ms. Thompson to provide a risk analysis for either appointment according to the terms of the ISC Staffing Framework.
C. The decision to use a non-advertised appointment process without first consulting an inventory was not an abuse of authority
[60] By way of context, the parties used the terms “pools” and “inventories”. The ISC’s Staffing Framework also states that it “... encourages the use of ... public service-wide pools and inventories, pools already established internally ... [and the] Aboriginal Inventory ...”. These are terms of art in the federal public sector. As Ms. Tremblay explained, a pool is a list of employees who have gone through an assessment process and have therefore been found to meet the essential qualifications for a position or positions. An inventory, on the other hand, is a list of employees who are interested in positions at a certain level. The employees in the inventory have not been assessed to ensure that they meet the essential qualifications of a position or positions.
[61] The complainant testified that she was in an inventory and that, therefore, she should have been considered for these two positions. She testified that she renewed herself in an inventory every 180 days and that she has been part of 7 or 8 inventories since joining the federal public service. Neither party produced a copy of this inventory, and the complainant was vague about what classification level inventory she was in. She testified that she was qualified as an EC-07 and put herself in inventories accordingly. She also testified that during the informal discussion that occurred after the acting appointment was made, Ms. Tremblay was unaware of the existence of the inventory.
[62] Ms. Tremblay’s evidence was that she did not consider using an inventory for these positions because she would have had to go through the process of assessing the candidates anyway as they were not already assessed and in a pool. She explained that she had used inventories before but never to staff a nursing position.
[63] Finally, the respondent’s written reply to the complaints stated that the complainant was not in an NU-CHN-07 inventory but, instead, in an NU-CHN-06 inventory. Ms. Tremblay did not testify to that point. The complainant did not ever state that she was in an NU-CHN-07 inventory (only that she was in inventories and that she was qualified as an EC-07). Neither party produced a copy of the inventory. Therefore, I cannot conclude whether the complainant was in an inventory that would have been caught by the positions at issue.
[64] Assuming that she was in such an inventory, that does not mean that the respondent abused its authority by using a non-advertised process. At most, the ISC’s Staffing Framework “encourages” the use of inventories; it does not require their use. This policy encouraging the use of inventories has not hardened into a legal requirement to use inventories. The respondent did not abuse its authority in this case by deciding not to use an inventory because Ms. Thompson was able to explain why she did not use inventories to fill nursing positions — namely, she had to assess a candidate’s qualifications anyway, so using an inventory did not make the process more efficient.
IV. The decision to use a non-advertised process and the selection of the two appointees were not tainted by bias or personal favouritism
[65] Subsection 2(4) of the PSEA states that “abuse of authority” includes bad faith and personal favouritism. In addition to this statutory prohibition against personal favouritism, “... those responsible for assessment in an appointment process have a duty to carry out an assessment that is unbiased and that does not generate a reasonable apprehension of bias”; see Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10 at para. 71. A reasonable apprehension of bias exists when a reasonably informed bystander could reasonably perceive bias on the part of one or more of the persons responsible for the appointment; see Drozdowski v. Deputy Head (Department of Public Works and Government Services), 2016 PSLREB 33 at para. 26, and Thompson v. President of the Canada Border Services Agency, 2017 PSLREB 22 at para. 57.
[66] Claims of personal favouritism and bias are particularly challenging when dealing with a non-advertised appointment process. Often, a non-advertised appointment process means that only one person was considered for the job — so, in a sense, the outcome was predetermined. The Board in Thompson was clear that this alone does not constitute bias or personal favouritism, stating at para. 58:
58 The complainants [sic] allegation that the respondent was biased towards the appointee rests on the fact that it was predetermined that he would be appointed to the disputed position because of having worked with Ms. Maisoneuve in the past. In my view, this is not sufficient to establish a reasonable apprehension of bias. As mentioned earlier, the respondent is under no obligation to consider more than one candidate....
[67] The complainant did not testify about any personal animosity between her and Ms. Buckland. Similarly, when asked on cross-examination about that matter, Ms. Buckland denied any personal animosity toward the complainant. There was also no indication that Ms. Buckland had a personal relationship of any kind with the two appointees.
[68] The complainant nevertheless argues that Ms. Buckland was biased against her. The complainant met with Ms. Buckland in October 2019 to discuss her career ambition, which was to move into more managerial and senior roles involving First Nations health care. In particular, the complainant recalled recommending to Ms. Buckland that she create a deputy chief nursing officer position (one of Ms. Buckland’s titles was Chief Nursing Officer) so that complainant could eventually work in that position. Ms. Buckland did not recall the details of her discussion with the complainant, but they both recalled that it was professional and collegial.
[69] The complainant argues that using a non-advertised process for these two appointments could only have been the result of bias on the part of Ms. Buckland because she knew that the complainant was interested in moving into more managerial and senior roles.
[70] Ms. Buckland’s evidence was that she could not remember precisely why she did not consider the complainant for these roles, and she testified that she would not have proactively thought about every single person in the department for a particular position. However, when preparing for the hearing, she recalled that the complainant was looking for a managerial position and that the two positions at issue in these complaints were not managerial (as they did not involve supervising other employees). In fact, Ms. Buckland noted that at the time of these two appointments the complainant was acting in an EC-07 position — which was a managerial position that often had NU-CHN-07 employees reporting to it. Ms. Thompson is an example of this reporting structure: her acting appointment was as an EC-07, and in that position, she supervised the two NU-CHN-07 positions at issue.
[71] I agree that these could have been reasonable explanations for not considering the complainant. On its face, it would have been odd to ask the complainant to take a one-year acting appointment, or even an indeterminate appointment, which would have been a demotion from her current acting appointment. Part of the differences between the parties in this case stems from different views about how nurses progress in their careers. The complainant testified that the traditional progression is from the NU-CHN-06 to NU-CHN-07 to NU-CHN-08 to EX-02 to EX-03 classifications. However, Ms. Buckland testified that employees at the EC-07 group and level manage nurses at the NU-CHN-07 group and level. Ms. Buckland also explained that she is a licensed nurse and that she came up through the EC classification to her current executive role; similarly, Ms. Thompson, also a licensed nurse, was promoted from NU-CHN-07 to EC-07. The complainant wanted an NU-CHN-07 job because she understood that it would be a promotion; Ms. Buckland thought that it would be a demotion from the complainant’s acting EC-07 job.
[72] However, these were all justifications that Ms. Buckland thought of while preparing for the hearing, and she could not say with certainty that they occurred to her when she approved the appointments.
[73] More importantly, Ms. Buckland testified that she would not have proactively considered or thought about every single person in her department for a particular position. I agree that she should not have had to. In essence, the complainant states that Ms. Buckland was biased against her because she did not think of her for these two jobs. A short mentoring conversation about how to move into the executive cadre did not oblige Ms. Buckland to consider the complainant every time a job came up.
[74] The complainant argues that Ms. Buckland’s failure to show favouritism toward her means that Ms. Buckland was biased against her. I disagree. An executive is under no obligation to consider or push forward for promotion everyone they have mentoring conversations with.
V. The appointee in the acting appointment met the educational qualification set for their position because an MBA was “relevant to the position”
[75] Paragraph 30(2)(a) of the PSEA requires that, for an appointment to have been made based on merit, the person appointed must have met the essential qualifications for the work to be performed. This means that “... it would be an abuse of authority to appoint a person who does not meet the essential qualifications ...” (see Visca v. Deputy Minister of Justice, 2007 PSST 24 at para. 36, and Kavanagh v. President of Shared Services Canada, 2017 FPSLREB 38 at para. 44). In other words, “[i]f the appointee does not meet the essential qualifications then, regardless of intent, it is not an appointment based on merit” (see Rinn v. Deputy Minister of Transport, Infrastructure and Communities, 2007 PSST 44 at para. 38). To borrow the respondent’s metaphor in its closing submissions, if one of the qualifications for a position is that you need to play basketball, you cannot be appointed if you play volleyball instead.
[76] Both the acting and indeterminate positions required the following education qualification: “Graduation with a master’s degree from a recognized post-secondary institution with an acceptable specialization in nursing, nursing service administration, nursing education or some other specialty relevant to the position.”
[77] The acting appointee has an MBA. The narrative assessment conducted by Ms. Tremblay for that position stated that an MBA was a “specialty relevant to the position” as follows:
...
The Masters Degree in Business Administration meets the criteria in the “other specialty relevant to the position.” An MBA prepared the candidate in business finance, information technology, decision information sciences, marketing, accounting and management; all important skills in the development and advancement of nursing essential services in first nations communities; in the retention and recruitment of nursing human resources; and in the quickly evolving world of health care technology.
...
[78] The complainant submits that an MBA is not a “specialty relevant to the position.” She contrasted an MBA with her own master’s degree which, in her submission, is much more closely related to the duties of the position. The respondent does not disagree that the complainant’s master’s degree would be useful and meet the requirements of the position, but submits that Ms. Thompson adequately explained how an MBA is also relevant to the position. According to the respondent, the complainant’s disagreement about whether an MBA is relevant or sufficient does not demonstrate an abuse of authority.
[79] Simple disagreement with how an assessment board or hiring manager assesses a candidate does not constitute an abuse of authority. As the Board put it in Portree v. Deputy Head of Service Canada, 2006 PSST 14 at para. 54, “[t]he fact that the complainant disagrees with the assessment board’s rating of her answer ... does not amount to abuse of authority. This is a ‘judgment call’ by the assessment board ...”. The same principle applies to the assessment of educational qualifications. The Board deferred to the hiring manager’s assessment of educational qualifications in Abi-Mansour v. Chief Executive Officer of Passport Canada, 2014 PSST 12 at para. 47, because he was “... very familiar with the work required for the subject position.”
[80] Similarly in this case, Ms. Tremblay was familiar with the work required for the acting position as she performed its duties for many years, and she was in a much better position than I to decide what specialities were relevant to the position. She reasonably decided that an MBA was relevant to the non-nursing elements of the job. I will not second-guess her assessment of what was relevant to that job, particularly as she worked in the job for years before being promoted out of it on an acting basis.
[81] Finally, in her allegations the complainant argued that the indeterminate appointee did not have a master’s degree from a recognized post-secondary institution. However, during closing arguments, she abandoned that argument, so I will not address it further.
VI. The two appointments were not an abuse of authority in light of the assessment of the appointees’ qualifications
A. There was no global assessment in this case
[82] The complainant submits that the respondent abused its authority when assessing whether the acting appointee met the qualification of “[s]ignificant experience providing direct primary care or public health services”. The complainant also submits that the respondent abused its authority when assessing whether appointing the indeterminate appointee met the qualifications of “[e]xperience in providing strategic policy advice to senior officials on primary care issues”, “[k]nowledge of the principles of primary care approaches”, and “[k]nowledge of health programs management principles and techniques”. In each case, the complainant argues that the respondent abused its authority by adopting a “global assessment” of those qualifications.
[83] The “global assessment” line of authority derives from the principle that an appointee must meet all the essential qualifications for a position. Some hiring managers would look at some or all the qualifications together and decide whether a candidate met those qualifications in the aggregate. For example, in Rochon v. Deputy Minister of Fisheries and Oceans, 2011 PSST 7 the hiring manager used what the Board called a “single global rating” to assess two qualifications without individually assessing them such that “[a] candidate may obtain a single overall pass mark ... without having been demonstrated that they meet each of these qualifications individually” (at para. 62). In this way, a “global assessment” or “global rating” violates the merit principle and is an abuse of authority.
[84] Contrary to the complainant’s argument, Ms. Thompson did not make a global assessment of either appointee. For each of the qualifications that the complainant expresses concern about, the narrative assessment explains why the candidate met that qualification. Ms. Thompson assessed each qualification separately and did not cut and paste responses for one assessment into another. In short, there was no global assessment.
[85] The complainant also argues that the assessments were superficial and inadequate. The complainant analogizes this case to Ross v. Commissioner of the Correctional Service of Canada, 2017 PSLREB 48, in which the details provided next to several qualifications were so deficient that the Board concluded that there was no assessment of merit. However, in that case the Board was concerned about the aggregate of the hiring manager relying upon the appointees to correctional manager positions having passed the entry-level test for new recruits (at paragraphs 109 and 110), the hiring manager using the identically worded rationale for three appointees (at paragraph 111), the hiring manager stating only that it “appeared” that the appointees met certain characteristics (at paragraph 112), that one of the assessments was done after the appointment began (at paragraph 113), and that there was no indication that one of the candidates had a secondary school diploma, as required (at paragraph 108).
[86] Respectfully, this case is nothing like Ross. Ms. Thompson did not use entry-level exams for senior positions, did not cut-and-paste her answers, did not backdate her assessment, and confirmed the appointees’ educational qualifications.
[87] To give an example, using the one that the complaint emphasizes most in her closing submissions, what follows is the assessment of one of the impugned qualifications:
Qualification
|
Narrative Assessment
|
|---|---|
Experience in providing strategic policy advice to senior officials on primary care issues.
|
[The appointee] has demonstrated the ability to assess pan-Canadian nursing issues, accessing stakeholder input as well as human resource and other data sources, and articulate these issues into policy advice and directives. For example, since arriving in NCR in August 2018, she has assessed the current issues surrounding transportation of dangerous goods to and from communities, and the needs of nurses to be educated and certified in this area. She has worked with regional colleagues and senior management to create a plan to address this gap in training and create a training plan.
|
[88] Ms. Thompson assessed that qualification thoroughly. In addition to simply asserting that the appointee had provided strategic policy advice, she used an example involving training in the transportation of dangerous goods to show that the appointee was able to advise senior management about a policy to fill that training gap. The complainant argues that “senior management” is not the same thing as “senior officials”; that type of pedantry does not suggest that Ms. Thompson abused her authority.
[89] The other qualifications were assessed with a similar or greater level of detail. I have concluded that the assessment of these qualifications was neither superficial nor inadequate.
B. The assessment of knowledge of health care issues faced by Indigenous populations was not an abuse of authority
[90] The complainant’s evidence was most compelling when she described the value that her lived experience brought to her work with ISC. The acting appointment listed “[k]nowledge of issues related to the delivery of health care services and programs for Indigenous populations” as one of the qualifications of that position. She testified about the importance of what she called her “real life” experience with the health care issues faced by Indigenous populations. As a nurse on a reserve providing health care, a First Nations person who was a patient, and a person responsible for helping her family obtain health care, she understands the systemic barriers faced by First Nations people seeking health care, including the different ways that racism impacts the provision of health services. She also understands those issues better than someone who does not have that lived experience.
[91] I agree in principle about the value of lived experience in this context.
[92] Unfortunately, I cannot do anything about it in these complaints.
[93] A complaint under the PSEA is not a job interview; I do not have the jurisdiction, nor am I qualified, to decide who should get a particular job. My role is to review whether the hiring manager actually assessed the qualifications and whether they abused their authority while doing so. As the Federal Court stated in Lavigne v. Canada (Justice), 2009 FC 684 at para. 70:
[70] The creation of essential qualifications is entrusted to the manager; it is not for the Tribunal or the Court to establish the essential qualifications required for a position or to substitute its assessment of the candidates’ qualifications for that of the manager or his or her sub-delegates, the assessment board in this case. The Tribunal’s role consisted of examining whether there had been abuse of authority in the way in which the assessment board reviewed the applications.
[94] The actual assessment in this case read as follows:
Qualification
|
Narrative Assessment
|
|---|---|
Knowledge of issues related to the delivery of health care services and programs for Indigenous populations.
|
Candidate has worked with Indigenous Services Canada in various capacities and in diverse areas since 2015, including with a transferred First Nations health organization. [Appointee] has demonstrated knowledge of issues for Indigenous populations in the programs and processes she works in.
|
[95] The level of detail in the narrative assessment was detailed enough to show that the qualification was actually assessed. Brevity alone is not an indication of an abuse of authority.
[96] I conclude by pointing out that these complaints were made under the PSEA before the amendments that came into force on July 1, 2023, to the effect that an error, an omission, or improper conduct includes one that results from a bias or barrier that disadvantages persons who belong to an equity-seeking group (see the PSEA, s. 2(5)). I have not considered whether those amendments might have affected the outcome of these complaints, as those provisions are not retroactive, and therefore this complaint must be determined based on the PSEA as it read when these complaints were made.
VII. Does professional registration as a nurse in British Columbia constitute a “... valid license/registration to practice nursing in the province or territory of employment” for a position located in the National Capital Region when the appointee works remotely from British Columbia?
A. The requirement to meet the essential qualifications for a position
[97] By way of context, s. 31 of the PSEA permits the “employer” (in this case, the Treasury Board of Canada) to establish qualification standards for a position. If the employer does so, the qualifications set by the hiring manager must meet or exceed the qualifications set by the employer.
[98] The employer has set out minimum qualification standards for all nursing positions (except for nurses involved in psychiatry, who have different standards). One of those minimum standards is “[e]ligibility for registration as a registered nurse in a province or territory of Canada” [emphasis added]. As Ms. Tremblay explained, the federal government has nurses working across Canada, so this standard only requires registration in a province or territory and not in any particular province or territory.
[99] The qualifications for both positions copied this requirement under the heading “occupational certification” — namely, the candidate had to be registered in a province or territory of Canada.
[100] However, the qualifications for both positions contained a second item under the heading “Conditions of employment” that read: “A valid license/registration to practice nursing in the province or territory of employment” [emphasis added]. Ms. Thompson testified that she wrote the qualification but could not explain why it was worded differently than the occupational certification qualification.
[101] The indeterminate appointee works in Ontario and is registered with the College of Nurses of Ontario, so she meets that requirement.
[102] But the acting appointee was registered with the British Columbia College of Nursing Professionals. She lived in British Columbia and teleworked. Ms. Thompson testified that she considered the appointee’s province of employment to be British Columbia because that was where she physically worked. The respondent also submits that this interpretation makes sense considering the nature of the position, which involved national policy and not the direct care of patients in a particular province.
[103] However, the Notice of Acting Appointment for that position states that the area of selection (i.e., the people who are eligible to make a complaint) is “... employees of Indigenous Services Canada who occupy a position in the National Capital Region.” When Ms. Thompson was asked about this area of selection, she testified that the acting position was located in the National Capital Region (specifically, in Ottawa, Ontario), which meant that the area of selection was accurate. In other words, the appointee’s province of employment was British Columbia, but she occupied a position in the National Capital Region. However, when pressed, Ms. Thompson admitted that it would be reasonable for someone reading the Notice of Acting Appointment to assume that an employee had to work and be registered in Ontario.
[104] This raises two issues.
B. The appointee’s province of employment was British Columbia
[105] The first issue is whether the appointee met the essential qualifications for the position. In other words, when an employee teleworks from one province to a position located in another province, which province is their province of employment? For this appointee, was her province of employment British Columbia or Ontario?
[106] I asked the parties whether they had any legal authorities on this issue, and both parties indicated that they did not. I also asked them about whether there were any far-reaching consequences about the implications of my decision on this point for other teleworking employees. The complainant suggested that there would not be, as job postings could simply specify that the positions are telework-eligible. The respondent had nothing to add about any practical consequences of my decision.
[107] I have also reviewed the Board’s jurisprudence on this point and have found nothing about any rules for determining what constitutes a person’s province of employment.
[108] However, an employee falls within the scope of a particular province’s labour or employment code when they live and work in that province in the absence of express statutory language to the contrary. For example, in Labour Relations Board of New Brunswick v. Eastern Bakeries Limited, [1961] SCR 72, the Supreme Court of Canada concluded that employees who were hired in Moncton, New Brunswick, but who lived and worked in Nova Scotia or Prince Edward Island fell outside the scope of New Brunswick’s labour laws. To look at this the other way, in Brushett v. Sun Life Assurance Company of Canada, 2017 NSLB 154, the Nova Scotia Labour Board concluded that the Nova Scotia Labour Standards Code (RSNS 1989, c 246) applied to an employee who was hired in Ontario for an Ontario employer but who teleworked from Nova Scotia for the last two years of her employment. Other provincial labour boards have come to the same conclusion, as in Shu Zhang v. IBM Canada Limited, 2019 CanLII 79641 (ON LRB) (an employee who teleworked from British Columbia was not employed in Ontario), and John Karpowicz v. Valor Inc., 2016 CanLII 49203 (ON LRB) (an employee who lived and worked from home in Michigan, in the United States, for an Ontario company was not employed in Ontario).
[109] Ms. Thompson’s interpretation of the phrase “province of employment” is consistent with how other labour boards decide which provincial labour law applies to employees who telework. This is an indication that her interpretation was reasonable and not an abuse of authority.
[110] In addition, Ms. Thompson testified that she read the phrase “province of employment” alongside the employer’s qualifications for nurses, which require registration in any province. I agree that it was reasonable to read the qualifications contextually. Ms. Thompson’s interpretation means that the “conditions of employment qualification” for this position is consistent with the occupational qualification for nurses established by the employer — namely, they had to be registered in any province or territory of Canada.
[111] Therefore, I conclude that the respondent did not abuse its authority by concluding that the appointee’s province of employment was the province in which she worked — namely, British Columbia.
C. The wording of the area of selection was not an abuse of authority
[112] However, this does not end my inquiry. The second issue is about the area of selection. As the complainant pointed out, the area of selection for the acting appointment was ISC employees who “... occupy a position in the National Capital Region.” The respondent may be technically correct to state that the position was located in the National Capital Region, but as Ms. Thompson admitted, a person reading the area of selection would reasonably assume that the position was available only to people employed in Ontario, with an Ontario nursing registration.
[113] The Board has no jurisdiction to hear a complaint solely about the reasonableness of the area of selection; see Umar-Khitab v. Canada (Human Resources and Social Development), 2007 PSST 5 at para. 15.
[114] However, in Kavanagh, the Board treated that as an issue of standing, not an issue about the appropriate subject matter of a complaint. In other words, a complainant outside the area of selection has no standing to complain that they should be in the area of selection (and be eligible to complain). By contrast, a complainant within the area of selection can still complain about the definition of the area of selection and argue that this definition shows an abuse of authority.
[115] In Kavanagh, the complainant had standing because she was within the area of selection. She argued that the respondent abused its authority by expanding the area of selection to include employees from outside her department. The Board considered the complaint despite it being related to the area of selection, stating this at paragraph 34: “Even though the Board does not have jurisdiction to hear a complaint about the area of selection in an appointment process, it must consider evidence that is relevant to the complaint made under s. 77 of the PSEA.” While the Board dismissed the complaint in that case, it still had to assess whether the way the area of selection was prepared constituted an abuse of authority.
[116] In this case, the complainant alleged that both appointments were not transparent and therefore constituted an abuse of authority. The respondent correctly pointed out that non-advertised appointments are not broadcast to employees before they happen. The required transparency comes only after the fact, when the notice of appointment is published. The respondent cited Appleby v. Deputy Head of the Royal Canadian Mounted Police, 2021 FPSLREB 142 at para. 46, which states:
[46] The complainant expressed her concern that the process was not transparent or fair. The answer to her concern is that transparency was afforded when the NAPA [notification of appointment or proposal of appointment] was issued. It notified employees of the details of the appointment and the right of recourse....
[117] The respondent also referred to Clout v. Deputy Minister of Public Safety and Emergency Preparedness, 2008 PSST 22 at para. 39, and Beyak, at para. 121, where the Board discussed the notice of appointment providing any requisite degree of transparency.
[118] During argument, I asked the respondent whether, if the required transparency occurs when the notice of appointment is issued, there is a problem when the notice is misleading. The respondent responded that the area of selection was technically accurate and whether somebody works remotely is not relevant to the notice of appointment. The implication of the respondent’s answer is that technical accuracy is sufficient even if it is misleading.
[119] I remain unconvinced by the respondent’s argument. Non-advertised processes are opaque by nature. The PSEA nevertheless requires some level of transparency in appointments. For non-advertised appointments, this transparency comes after the fact, when the notice of appointment is published. A misleading notice of appointment (even if it may be technically correct) is not transparent.
[120] That said, the Board’s jurisdiction is to inquire into whether there has been an abuse of authority. Not every error rises to the level of an abuse of authority; see, for example, Bérubé-Savoie, at para. 29 (“... whether or not an error or omission constitutes an abuse of authority will depend on the nature and seriousness of the error or omission”), Lavigne, at para. 62 (“[a]buse of authority requires more than error or omission, or even improper conduct”), and Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 73 (“... abuse of authority is more than simply errors and omissions ...”). The Board’s case law is replete with decisions stating that a “serious error”, a “serious error or omission”, or an “unreasonable” action is an abuse of authority.
[121] In my view, the crucial question in these complaints is whether the error jeopardizes the PSEA’s superordinate purpose of ensuring that appointments are made based on merit. An error that risks an appointment violating the merit principle is “serious” or “unreasonable”. As the Federal Court of Appeal put it in Bambrough v. Canada (Public Service Commission Appeal Board), [1976] 2 FC 109 at page 115, “Selection according to merit is the dominant objective and consideration of the Public Service Employment Act and the essential criterion by which the exercise of powers under the Act is to be judged.” While the court was writing about the pre-2005 version of the PSEA, this passage remains true today under the current version.
[122] The misleading characterization of the area of selection has not jeopardized the merit principle. The merit principle in the PSEA is that appointees must meet the essential qualifications of the position and that the appointment be made based on the appointees’ non-essential qualifications together with the organization’s current or future requirements and needs (see the PSEA at s. 30). Therefore, I have assessed whether the misleading area of selection made it possible to appoint someone unqualified for the position and unsuited for the organization’s needs.
[123] Since this was a non-advertised appointment, the misleading area of selection did not deprive candidates of the opportunity to apply because there was no application process. As I stated earlier, the appointee met the conditions of employment for this position. Therefore, the appointment respected the merit principle. The misleading area of selection does not constitute an abuse of authority in this case because it did not create a risk that someone unqualified was appointed or deprive any other employee of the ability to apply for this position.
VIII. Other issues raised in the complaints
[124] While the complainant did not belabour the point during her closing submissions, she submitted that the difference in qualifications between the two positions demonstrated an abuse of authority, suggesting that the qualifications had been manipulated to assist one or the other of the appointees. The main example she provided was that the acting position required four years’ experience working in primary care in a health service organization, while the indeterminate position required only two years’ experience. I saw no evidence of manipulation to fit either of the appointees. As the respondent correctly pointed out, these were two different positions. Just because two positions have the same classification does not mean that they should have the same qualifications.
[125] The complainant also suggested that there was something nefarious in this case because the respondent did not file a copy of the Statement of Merit Criteria for either appointment. However, the narrative assessment in both cases instructed Ms. Thompson to copy all qualifications from the Statement of Merit Criteria into the narrative assessment, and she testified that she did. I am satisfied that the qualifications for both positions were those listed in the narrative assessment.
[126] Finally, while the complainant’s representative did not raise this point during closing submissions, I was concerned that Ms. Thompson used a reference check for the acting appointment without keeping any notes of that reference check. She also did not keep notes of her informal interview of the indeterminate appointee. I want to repeat the Board’s caution in Dionne v. Deputy Minister of National Defence, 2008 PSST 11 at para. 66 about the importance of taking and retaining notes during a reference check, and I extend that caution to taking and retaining notes during an interview. Had the complainant raised the issue during closing submissions, I would likely have concluded that the failure to keep notes did not rise to the level of an abuse of authority, but since the point was not argued, I will not address it further.
[127] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
IX. Order
[128] The complaints are dismissed.
April 11, 2024.
Christopher Rootham,
a panel of the Federal Public Sector
Labour Relations and Employment Board