FPSLREB Decisions
Decision Information
The complainant made a complaint in which he alleged that the respondent abused its authority in the selection of process and in the application of merit in a non-advertised internal appointment process. He withdrew the application-of-merit allegation. He alleged that he was not considered for appointment because of, notably, his union activities and his differences of opinion with the management team, both of which led to the respondent’s decision being tainted with a reasonable apprehension of bias. He acknowledged that it had the right to choose either type of appointment process but argued that the decision to proceed with a non-advertised process was not justified. He also alleged that the respondent established a circumvention system to appoint employees for periods of less than four months and then to appoint them for periods exceeding that time. The Board determined that the complainant’s status and union responsibilities did not create a presumption of a reasonable apprehension of bias against him and that the evidence did not support that allegation. The decision not to appoint him to the position was not attributable to the manager who, according to the complainant, had negative feelings toward him. The evidence did not set out any animosity between him and those involved in the appointment process or that there was bias against him. The Board concluded that the decision to proceed with a non-advertised process was motivated by an existing operational need. The choice of process was justified in the justification letter for the selection decision. The position’s incumbent, who was highly qualified, left suddenly, when the team faced delays completing a major project. The Board also concluded that the serious allegation that the respondent established a circumvention system did not go beyond a mere assertion; there was no evidence to support it.
Complaint dismissed.
Decision Content
Date: 20250128
File: 771-02-46657
Citation: 2025 FPSLREB 9
| Before a panel of the
Federal Public Sector
Labour Relations and
Employment Board
|
BETWEEN
Stéphane Goulet
Complainant
and
DEPUTY HEAD
(Department of National Defence)
Respondent
Indexed as
Goulet v. Deputy Head (Department of National Defence)
Before: Adrian Bieniasiewicz, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Louis Bisson, Union of National Defence Employees
For the Respondent: Maryse Lepage, counsel
For the Public Service Commission: Maude Bissonnette Trudeau, senior analyst
(FPSLREB Translation)
REASONS FOR DECISION
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(FPSLREB TRANSLATION)
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I. Overview of complaint before the Board
[1] Stéphane Goulet (“the complainant”) filed a complaint of abuse of authority against the Deputy Head of the Department of National Defence (“the respondent”). The complaint involves the appointment of Hugo Leroux (“the appointed person”) to the position of mechanical planner/analyst on an acting basis for longer than four months. This position is classified at the EG-04 group and level within the Department of National Defence, at 202 Workshop Depot in the east of Montreal (“the EG-04 position”).
[2] More specifically, the complainant alleges that the respondent abused its authority when applying the merit principle, as the appointment relied solely on the fact that the appointed person had already been part of the same organization as the delegated manager and had worn the uniform. Moreover, the appointment was allegedly based on a system of favouritism toward former members.
[3] Additionally, the complainant submits that the respondent abused its authority by using a non-advertised appointment process for the purpose of favouring the appointed person because of his military past and excluding the complainant, among other reasons, because of his union activities and differences of opinion with the management team. The respondent also allegedly did not justify the choice of the process and established a system to bypass the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “the Act”) as in this case. This bypass system allegedly consists of first appointing employees for periods of less than four months, which would therefore be exempt from a complaint under section 77 of the Act, and then appointing them for periods longer than four months, as in this case.
[4] During the hearing, the complainant withdrew all the assertions as detailed in his March 16, 2023, allegations in support of the allegation of abuse of authority in the application of the merit principle. He also repeated the assertion that the respondent allegedly chose a non-advertised process to favour the appointed person because of his military past.
[5] The respondent denies all the allegations and is asking the Federal Public Sector Labour Relations and Employment Board (“the Board”) to dismiss the complaint. The Public Service Commission did not participate in the hearing and did not take a position on the merits of the complaint. It did, however, submit general arguments and arguments specific to the Public Service Commission’s Appointment Policy.
[6] For the following reasons, I find that the complaint is unfounded.
II. Summary of the evidence
[7] The complainant called two witnesses, Sonya Simard and Johanne Rouillard. Ms. Simard holds a substantive position with Service Canada as major fraud officer. On February 21 and 22, 2023, she facilitated a session for the purpose of reconciling the relationship between the management and union parties. During this session, she noted that Colonel Christopher Moyle, commander of 202 Workshop Depot at the relevant time, was not very engaged in the practical exercises and was not paying attention to the complainant’s responses. However, she did not hear any statements from Colonel Moyle about the complainant. In cross-examination, Ms. Simard confirmed that nobody had addressed Colonel Moyle to report the situation concerning the complainant.
[8] Ms. Rouillard holds the position of tailor at the Valcartier military base. She is the Assistant Regional Vice President of the Union of National Defence Employees (UNDE) and President of Local 10507. Ms. Rouillard testified about how the union‑management consultation meeting went at 202 Workshop Depot in October 2022.
[9] First, Ms. Rouillard noted that the management representatives were seated on one side of the table and the union representatives on the other. Normally, however, everyone tries to sit side by side instead of in a confrontational position. When it was time for her presentation as Assistant Regional Vice President, Colonel Moyle jumped and asked the complainant why there was a person from the regional union at the meeting. She also noted that Colonel Moyle did not agree with the complainant’s arguments. When the complainant suggested meetings between the members and Colonel Moyle so they could ask him questions directly, he replied firmly that he did not have to tell him how to do his job. Ms. Rouillard retorted that that was not what the complainant was trying to do.
[10] On cross-examination, Ms. Rouillard admitted that she did not know whether her presence at the meeting had been announced beforehand. However, in her opinion, it was not her presence that surprised Colonel Moyle so much as the term “regional” in her title of Assistant Regional Vice President. She did not deny that Colonel Moyle closed the meeting by saying that he appreciated his relationship with the unions and that they had honest and good communications even though they did not always agree, as noted in the November 2022 minutes.
[11] The complainant testified that he had held the position of weapons system integration technician, classified at the GL-MAM-10 group and level, at 202 Workshop Depot since 2010. For four years, he had held the position of President of UNDE Local 10526, whose members worked at 202 Workshop Depot. As part of his union duties, he was responsible for labour relations issues and grievance hearings, and he participated in meetings with the management team.
[12] In the summer or fall of 2022, the complainant presented his résumé in response to a notice of interest to fill the EG-04 position for a period of less than four months. However, he was not selected. On February 2, 2023, he was informed that Mr. Leroux had been appointed to the EG-04 position for an acting period of more than four months. During the relevant period, Marie-Claude Lepage was the head of corporate services. His relationship with her was not particularly good and, according to the complainant, she was very resistant to the union. Their opinions differed.
[13] Martin Brosseau, Jasmin Guérette and Hugo Lafrance were on the selection committee for the non-advertised appointment process to fill the EG-o4 position. The complainant had a good relationship with Mr. Lafrance. Mr. Brosseau is retired from the Canadian army. The complainant did not have any problems with him. As for Mr. Guérette, he was a major and wore his uniform while at 202 Workshop Depot from 2013 to 2015. During this period, there was tension between the complainant and Mr. Guérette with regard to the union. They had different points of view. He remembered that voices were raised once. That period of friction did not last very long because Mr. Guérette left a few months after the complainant started his union duties. Mr. Guérette returned to 202 Workshop Depot around 2020, but the complainant did not have many direct dealings with him. Mr. Guérette is Ms. Lepage’s spouse.
[14] The person appointed to the EG-04 position had worked for several years as a member at 202 Workshop Depot. He wore the uniform. When he arrived at 202 Workshop Depot, he essentially carried out the same duties as the complainant. They were on the same team, although they worked on different projects.
[15] Colonel Moyle could seem friendly and understanding on certain points during meetings in the hallways or in his office; however, in a more formal context, he had very closed positions and was rather authoritarian. He let the complainant know that he did not always appreciate his suggestions. Colonel Moyle had the last word in all matters involving labour relations. He approved the appointment processes that were longer than four months.
[16] Several complaints of unfair labour practice were filed by union representatives against Colonel Moyle near the end of 2022 because of his actions. These complaints, grouped together as a single one, were resolved. In early 2023, the complainant filed an individual complaint for retaliation for his union duties. At the time of the hearing, the grievance was still ongoing.
[17] According to the complainant, Colonel Moyle and the three members of the selection committee used the non-advertised process to block his career development because of their differing points of view. They allegedly preferred military members or former military members, like the appointed person. There was a system of favouritism towards military members. Civilian employees were at a disadvantage because they could not gain experience. However, the complainant is not challenging the fact that Mr. Leroux is qualified for the EG-04 position and meets the merit criteria.
[18] In cross-examination, the complainant stated that the unfair labour practice complaints and his individual grievance were filed earlier in the summer of 2021. The complainant was unable to provide a copy of the notice of interest the respondent allegedly issued to fill the EG-04 position for a period of less than four months, or its exact date. According to the complainant, four people, including the appointed person and himself, submitted their applications in response to the notice of interest.
[19] The complainant confirmed that his exchanges with Colonel Moyle occurred during union-management advisory committee meetings, hearings of grievances at the 2nd level and, more informally, during discussions in the hallways or in Colonel Moyle’s office. The complainant confirmed that during these informal discussions, Colonel Moyle was more open and friendly.
[20] The complainant does not know whether Colonel Moyle or Ms. Lepage were personally involved in the appointment process in question. However, Colonel Moyle signed the document related to the process. The complainant confirmed that Mr. Guérette raised his voice once during their last exchange in the winter of 2014-2015. The complainant does not deny having thanked Colonel Moyle and the deputy commander for listening and for their openness and saying that he hoped to work with them on important cases before their departure, as indicated in the May 11, 2023, minutes. The complainant cannot say that he was not heard at the table or that he was not given the opportunity to speak. On the contrary, it was respectful. However, he did not always obtain the results he hoped for.
[21] The respondent called two witnesses, Martin Joseph Jean-Charles Brosseau and Jasmin Guérette. Mr. Brosseau is head of Program, Plan, Control and Strategies at 202 Workshop Depot. Mr. Guérette is the group leader, Development at 202 Workshop Depot.
[22] Mr. Brosseau explained that the EG-04 position was directly linked to the M777 Project for light artillery guns. The M777 Project involved a series of modifications to the guns, according to the specifications provided in the mandate given by the Canadian Armed Forces. The employee in the EG-04 position was to take on the role of senior technical analyst for all the tasks to be carried out on the arming component of the gun. More specifically, in summary, the person was to analyze all the instructions of the work to be done on the gun, and structure the work in a logical sequence to allow the production team to carry out the mass production sequence. It was around the fall of 2020 that the respondent began to organize teams for the M777 Project.
[23] Mr. Leroux was initially appointed to the EG-04 position on October 27, 2022, for a period of less than four months. On February 27, 2023, after a non-advertised process, he was appointed to the position until October 27, 2023. The first appointment was in response to the sudden departure of the EG-04 incumbent. The project had to move forward. It was therefore necessary to quickly replace the employee who had left. It was determined that the appointed person had the technical skills required, in particular with drafting technical documents, preparing and scheduling the tasks needed to continue the project. Since the replacement had to be made quickly, the management team decided not to proceed by notice of interest.
[24] With regard to the appointment for a period greater than four months, the respondent also used a non-advertised process so the project would not be slowed down. Moreover, the appointed person had already been in the position for a few months and he was doing a good job, had integrated into the team and had a strong technical mastery of the work to be accomplished. He did not need to be trained. The management team determined that the needs of the project had to take precedence over the development opportunities of the other employees.
[25] Mr. Brosseau stated that Colonel Moyle did not participate in this appointment process and did not influence the choice of the person appointed, even if he had the financial authority to staff positions in his unit. Ms. Lepage’s role was to provide advice about the choice of appointment process and inform of the potential consequences of the choice. The decision regarding the choice of process was his.
[26] He knew the complainant solely in a professional context. Their exchanges, mostly because of the complainant’s union responsibilities, were always polite and cordial. Mr. Brosseau did not know the appointed person. He had very few interactions with the people who worked on the floor.
[27] To summarize, the technical expertise, integration in the team, versatility and resourcefulness of the appointed person, which allowed the project to progress, justified his acting appointment to the EG-04 position. Although the complainant and the appointed person were on the same work team, contrary to the complainant, the appointed person had work experience in the system as a whole, and therefore had a strong understanding of the interactions between the various sub-systems and a stronger technical expertise on the overall system. The appointed person had a strong technical drafting technique, which is a particularly important element of the work.
[28] Mr. Brosseau confirmed that Ms. Rouillard’s presence during the union-management advisory committee meeting in October 2022 had triggered a reaction from Colonel Moyle, but he could not say why.
[29] On cross-examination, Mr. Brosseau confirmed that Colonel Moyle had signed the letter of offer for the appointed person. The team working on the M777 Project was under Mr. Guérette’s responsibility, but he did not have any delegated staffing authorities. Mr. Lafrance was Mr. Guérette’s assistant. He was, in a sense, the senior analyst. He was responsible for the development and mentorship of the analysts.
[30] With regard to the appointment of less than four months, Mr. Brosseau did not participate in the smaller details. Mr. Guérette took care of the “preparatory work.” Mr. Brosseau does not know who selected the appointed person. That decision was made by one of the group leaders at the time. He merely formalized the decision.
[31] Mr. Brosseau stated that he was aware of the importance of justifying all appointment decisions properly. The reasons that justify Mr. Leroux’s selection for an acting period of more than four months are set out in the document [translation] “Justification of selection decision” dated January 11, 2023. It refers to the quality of the work delivered by the appointed person, his initiative, proactivity and resourcefulness. When the appointed person’s versatility is mentioned, the reference is to his ability to work on the whole armament system. With regard to the justification of using a non-advertised process, the letter states that it was [translation] “to compensate for the lack of an armament technologist to support the implementation of the M777 Project…”
[32] Mr. Brosseau did not hear any negative statements or insinuations from Colonel Moyle or his subordinates about the complainant.
[33] On re-examination, Mr. Brosseau clarified that the expression “operational need” found in the justification letter of January 11, 2023, refers to the production and delivery of equipment on time, which takes precedence over other needs, such as providing development opportunities to other employees or checking for other more qualified people externally. They did not have time to conduct a full advertised process.
[34] Mr. Guérette testified that the Development Group at 202 Workshop Depot is responsible for tooling production, resolving more complex technical problems for the production programs and developing work procedures to implement the repairs and modifications of the Leopard 2 vehicles and M777 guns. This group is made up of a small, specialized team. There is the group leader, a senior technologist, two project coordinators and analysts. Moreover, under the group leader (parallel to the senior technologist), there is an engineer and two specialists in electronics development. The group leader initiates the appointment process, when needed.
[35] For the M777 Project, the employee in the EG-04 position is responsible for creating a work sequence. The work sequence begins with dismantling the equipment and continues until it is reassembled, together with other workshops and the equipment manager. In other words, the EG-04 employee is responsible for preparing the work instructions that will allow for the modifications and repairs of the M777 guns to be carried out. Once these instructions are developed, a prototype is constructed and a first validation is made with the technicians and the equipment manager. This is very demanding work. The work instructions must be functional and allow the technicians to follow the various steps. The work instructions are like a user manual. Once this phase is completed, the work is transferred to a production group for mass production and the need for an EG-04 position at the Development Group declines drastically.
[36] The complainant works in the Manufacturing Component and Electronic Production program (“the MCE Production program”). He is a hydraulics specialist. Before being appointed to the EG-04 position, Mr. Leroux also worked in the MCE Production program. However, they worked in different buildings, did not perform the same tasks and did not have the same responsibilities. The complainant was assigned to hydraulics. However, the appointed person worked directly on armament (Leopard or M777 parts). Armament can be as simple as a pistol and all its components, or a mortar, canons and armoured vehicles. Technicians assigned to armament refurbish and inspect armament. On the other hand, a hydraulics specialist, like the complainant, tests and repairs specific components related to hydraulics systems.
[37] Mr. Leroux’s appointment to the EG-04 position for a duration of less than four months was done in the context of the sudden departure of one of the armament analysts. He had to be replaced. After discussions, it was decided that the appointed person was the best candidate to replace the employee who had left. The respondent did not proceed with a notice of interest for this appointment. Because of the modification of the duties initially stated in the mandate, the project was extended and the acting appointment also had to be extended.
[38] With regard to the appointment longer than four months, Mr. Guérette participated in the development of the merit criteria and the narrative. He and his senior technologist reviewed the appointed person’s résumé and assessed each of the criteria. He also drafted the January 11, 2023, justification for the selection decision, which was signed by Mr. Brosseau. They did not consider other employees for the EG-04 position although, unofficially, Mr. Guérette had considered it. The operational needs are established by the army and not by 202 Workshop Depot. The M777 Project is a priority and of significant importance for the army, considering the situation in Europe and around the world.
[39] It was Mr. Guérette who asked to extend the acting appointment of the appointed person in order to fill the lack of armament technicians in the Development group after the unplanned departure of the incumbent. The project had to progress. Things were going well with the appointed person. Mr. Guérette could not take an analyst from the Production team because that analyst was already assigned to his duties. This would have created a hole in the Production team. The Development team was temporarily growing to focus on a project. Once the project entered the production phase, the group would shrink.
[40] Mr. Guérette has known the complainant since 2014. They had a good relationship, generally speaking. He has known the appointed person since 2008. They were deployed to Afghanistan together. He was his subordinate. There was no personal relationship with him. The appointed person had previously worked on the M777 gun for several years, before working at the 202 Workshop Depot. As for Ms. Lepage, she is his spouse. She was the head of corporate services. As such, she was to ensure that the directives were respected and that the managers’ choices were appropriate.
[41] In cross-examination, Mr. Guérette indicated that Colonel Moyle, although he signed the letter of offer, did not know who the best candidate was to carry out the work. Mr. Brosseau is a head of program. His scope of responsibilities is very broad. He is not on the floor. Mr. Guérette is the best placed to assess the candidates. The appointed person still holds the EG-04 position on an acting basis because the transfer of the M777 Project to production was delayed.
[42] Mr. Guérette did not recall any difference of opinion between him and the complainant in the past that would have stood out to the complainant. He had not witnessed any altercations, differences of opinion or raised voices between the complainant and Colonel Moyle. Ms. Lepage was not present during the discussions about the choice of process or candidate, or during the briefings given by Colonel Moyle.
[43] It is possible that, at some point, the appointed person worked next to the complainant in the same building, but they did not do the same work.
[44] On re-examination, Mr. Guérette stated that he had no memory of having raised his voice towards the complainant. To his knowledge, the most recent extension of the acting appointment of the appointed person was not challenged.
III. Analysis and Reasons
[45] During final arguments, the complainant restated that he was withdrawing all the statements made in his allegations of March 16, 2023, related to favouritism of members.
[46] As a result, only the following questions are to be reviewed to determine whether there was an abuse of authority:
(1) Was the respondent’s decision to not appoint the complainant in the EG-04 position tainted by a reasonable apprehension of bias towards him?
(2) Did the respondent adequately justify its decision to proceed with a non‑advertised process?
(3) Did the respondent implement a bypass system by relying on acting appointments of less than four months and then extending them?
A. Abuse of authority
[47] The Act does not provide an extensive definition of what constitutes an abuse of authority. Section 2(4) of the Act states that abuse of authority shall be construed as including bad faith and personal favouritism. The term “including” necessarily implies that wrongdoing other than that listed in s. 2(4) could lead to abuse of authority within the meaning of the Act (see Canada (Attorney General) v. Lahlali, 2012 FC 601 at paras. 33 to 35).
[48] A simple error or omission or irregular conduct would not justify the Board’s intervention. The impugned conduct, error or omission must be unreasonable, unacceptable or outrageous in such a way that Parliament could not have intended the person with the authority to exercise its discretion in this manner (see Davidson v. Canada (Attorney General), 2021 FCA 226 at para. 25). In an abuse of authority complaint, the complainant must demonstrate on a balance of probabilities a serious wrongdoing or flaw in the appointment process (see Portree v. Deputy Head of Service Canada, 2006 PSST 14 at para. 47).
B. The evidence does not support the allegation of reasonable apprehension of bias
[49] The case law recognizes that a reasonable apprehension of bias constitutes a form of bad faith. Proof of intent is not required to demonstrate it (see Harnois v. Deputy Head (Deputy Minister of Transport, Infrastructure and Communities), 2024 FPSLREB 106 at para. 100). However, mere suspicions, speculations or possibilities of bias are not enough. The apprehension must be real, probable or reasonably obvious (see Palmquist v. President of the Canada Border Services Agency, 2020 FPSLREB 6 at para. 77).
[50] In Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at page 372, the Supreme Court of Canada stated the criterion for reasonable apprehension of bias as follows:
… The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information, the test of “what would an informed person, viewing the matter realistically and practically—conclude?” …
[51] This criterion was reformulated to a certain extent with regard to abuse of authority complaints in staffing matters (see Green v. Deputy Minister of National Defence, 2018 FPSLREB 69 at para. 89). The reformulated version states the following:
… Would a reasonably informed bystander looking at the process reasonably perceive bias on the part of one or more of the persons involved in the assessment of the complainant?
[52] The complainant did not meet his burden of establishing on a balance of probabilities that the respondent’s decision to not appoint him to the EG-04 position was tainted by a reasonable apprehension of bias against him. I agree with the respondent that the complainant’s status and union responsibilities do not create a reasonable apprehension of bias against him.
[53] First, the evidence shows that Colonel Moyle did not participate in the appointment process, other than signing the letter of offer. According to the respondent’s witnesses, Colonel Moyle did not interfere in the appointment process and did not intervene in the choice of the appointed person. He had delegated his staffing authority to his program leaders, in particular to Mr. Brosseau. The lack of Colonel Moyle’s participation in the appointment process refutes the complainant’s allegation that he had prevented or attempted to prevent his appointment to the EG-04 position because of his union status or differences of opinions. Mr. Brosseau also testified that he had not heard any negative statements by Colonel Moyle about the complainant. An allegation of reasonable apprehension of bias cannot be limited to speculations and suspicions (see Palmquist).
[54] The complainant did not file any evidence to support his allegation that Colonel Moyle had or has negative feelings about him or that the other people at 202 Workshop Depot were in any way influenced by Colonel Moyle’s opinion about the complainant.
[55] Considering the above, it is not necessary to further analyze the relationship between Colonel Moyle and the complainant during the relevant period. The evidence shows that the decision to not appoint the complainant to the EG-04 position is not directly or indirectly attributable to Colonel Moyle.
[56] I also conclude that the evidence does not support the fact there was any animosity between the complainant and the three individuals who participated in the appointment process, namely Messrs. Brosseau, Guérette and Lafrance, or that there was any bias against him, either generally or, more specifically, because of his union status or differences of opinions.
[57] The complainant testified that he had a good relationship with Mr. Lafrance. As for Mr. Brosseau, the complainant confirmed that he did not have many exchanges with him and stated that their relationship was not problematic. With regard to Mr. Guérette, the complainant stated that during the first time Mr. Guérette was at 202 Workshop Depot from 2013 to 2015, there was some tension for a period that did not last very long. In fact, Mr. Guérette left the 202 Workshop Depot a few months after the complainant began his union responsibilities. The complainant testified that voices were raised only once, during their discussion in the winter of 2014-2015. When Mr. Guérette returned to 202 Workshop Depot in 2020, the complainant did not have any direct contact with him.
[58] Other than the fact that this short period of tension took place eight years prior to the appointment process that is the subject of this complaint, the complainant did not provide me with any details about it. I know almost nothing about the incident that took place years ago, and Mr. Guérette does not remember it.
[59] First, even if I accepted that voices were raised during a discussion between the complainant and Mr. Guérette, this alone, with no other relevant information, is not sufficient to find there was a reasonable apprehension of bias against the complainant. If the complainant considered this isolated incident as significant, I would have expected more details from him. Moreover, the complainant did not establish a link between the raised voices in the winter of 2014-2015, if voices were indeed raised, and the appointment process that took place in early 2023. After all, the complainant had the burden (Praught and Pellicore v. President of the Canada Border Services Agency, 2009 PSST 1 at para. 66; Jayawardena v. Chief Statistician of Canada of Statistics Canada, 2012 PSST 2 at para. 51).
[60] As for Ms. Lepage, nothing in the evidence leads me to conclude that she participated in the appointment process. She might have given Mr. Brosseau advice about this appointment process but that is all. In the end, it was Mr. Brosseau who decided that the process would be non-advertised. Moreover, Mr. Guérette confirmed in his testimony that Ms. Lepage was not present at the discussions about the choice of process or those about the choice of candidate. Lastly, regarding the relationship between the complainant and Ms. Lepage, it was limited to a vague allegation by the complainant that the relationship [translation] “was not particularly good” and that Ms. Lepage had a resistant attitude towards the union.
[61] Nothing in the above allows me to conclude that Ms. Lepage conspired with the members of the selection committee to prevent the complainant’s appointment to the EG-04 position, as the complainant appears to suggest.
[62] The party that alleges a reasonable apprehension of bias must prove it with compelling evidence, shown on a balance of probabilities. Vague insinuations, speculations or unfounded assumptions are not sufficient to establish such an allegation. The evidence must be real and sufficiently precise to convince a reasonable person informed of the facts that the alleged apprehension is well-founded (see Denny v. Deputy Minister of National Defence, 2009 PSST 29 at para. 124; Haller v. Deputy Head (Department of National Defence), 2022 FPSLREB 100 at para. 72).
[63] In the present case, the complainant did not meet his burden of proof. I am of the opinion that a relatively well-informed observer could not reasonably perceive any bias in the appointment process by the persons identified by the complainant.
C. The respondent justified its decision to proceed with a non-advertised process
[64] The respondent justified its choice to rely on a non-advertised process. This choice was motivated by an existing operational need. I reach this finding of fact after attentively reviewing the content of the justification letter for the selection decision dated January 11, 2023, submitted to evidence, and the relevant testimony.
[65] Section 33 of the Act allows the Public Service Commission (and therefore the person to whom staffing power is delegated, in this case, the respondent) to choose between an advertised process and a non-advertised process to staff a position. This provision states the following:
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[66] The complainant is not challenging the fact that the respondent had the option of choosing either of the appointment processes in this case. Instead, he is alleging a lack of justification by the respondent for using a non-advertised process. As a result, according to the complainant, the respondent abused its authority in the choice of process. I do not agree.
[67] The respondent’s witnesses explained the context in which the appointment of less than four months, which cannot be the subject of a complaint under section 77 of the Act, and the appointment greater than four months were made. To summarize, 202 Workshop Depot received a mandate from the army to repair and refurbish M777 light artillery guns. This was the M777 Project. Teams linked to this project started to be organized around the fall of 2020. A highly qualified employee working on the project suddenly left the public service. He had to be replaced quickly so that the project could continue and the prototype completed and sent to mass production. The M777 Project was a high priority and of major importance for the army given the situation in Europe and elsewhere in the world. This evidence is not contested.
[68] This is the context in which Mr. Leroux was appointed to the EG-04 position for a period of less than four months, from October 27, 2022, to February 26, 2022. As the project was still not completed at the end of that period, the respondent decided to extend the appointment for an additional eight months, from February 27 to October 27, 2023. This second appointment was done through a non-advertised process.
[69] In the justification letter for the selection decision dated January 11, 2023, the respondent justified using a non-advertised because of an operational need. The relevant excerpt from the letter states the following:
[Translation]
Operational need, internal non-advertised process, area of selection 202 WD in Montréal
Motivation;
In order to compensate for the lack of an Armament technologist to support the implementation of the M777 Project in the Development Group, I would like to extend Mr. Hugo Leroux’s acting period beyond four months.
…
[70] Mr. Brosseau signed this letter. During his testimony, he stated that the “operational need” mentioned in the letter was in reference to the production and delivery of the equipment within the deadlines, as well as the progress of the project such that the organization could deliver a prototype for production. Because of this, he did not have the time to staff the position using an advertised process.
[71] Mr. Guérette added that the acting appointment had to be extended in order to complete the prototype. He also explained that the need to “… compensate for the lack of an Armament technologist to support the implementation of the M777 Project in the Development Group” was due to the sudden departure of the incumbent. There was no armament technician/analyst in the Development group. This evidence is uncontested.
[72] From this January 11, 2023, justification letter, I retain that the respondent’s decision to use a non-advertised process to appoint the appointed person can be explained by the need for the M777 Project to progress. This is the operational need that was at the core of the respondent’s decision to use a non-advertised process. It is true that the justification the respondent provided in the letter in question is relatively brief. However, it is convincing, and as such, it is sufficient. The complainant did not present any evidence indicating that this justification was not based on reality. It is not because the complainant would have liked a more detailed justification that I can find there was an abuse of authority. I see nothing unreasonable, unacceptable or outrageous in the respondent’s decision to use a non-advertised process, considering the evidence that was presented to me (see Davidson).
[73] I disagree with the complainant that the justification provided in the January 11, 2023, letter does not reflect the testimony of Mr. Brosseau and Mr. Guérette. On the contrary, these witnesses confirmed the operational need that the organization was facing, namely the sudden departure of a highly qualified employee from the Development group working on the M777 Project, and the need to ensure that the project progressed efficiently, for the reasons explained above. The fact these witnesses provided details of the justification in the letter does not contradict it at all. If the witnesses merely repeated what appeared in the document, I would not see how their presence would be useful.
[74] For this same reason, contrary to the complainant’s assertions, I am of the opinion that witnesses can add elements that are not specified in the written justification (Savoie v. Deputy Head (Department of Employment and Social Development), 2024 FPSLREB 78 at para. 23). Of course, this testimonial evidence must be credible and align with the justification initially given, rather than contradict it. That being said, there is nothing in the above that could be interpreted as allowing the respondent to escape its obligation to adequately justify its decision to use a non-advertised process, before appointing the selected person, on the pretext that it could provide this justification later during a hearing before the Board.
[75] Lastly, the facts in Hunter v. Deputy Minister of Industry, 2019 FPSLREB 83, cited by the complainant, differ from the facts in the present case. I agree with the respondent that the reason that led the Board to conclude in Hunter, that the respondent had abused its authority by using a non-advertised process was attributable to a series of errors that amounted to bad faith. This is not the case here.
[76] The complainant is not challenging the fact that the respondent properly assessed the merit criteria before proceeding with Mr. Leroux’s acting appointment of more than four months. Moreover, the complainant conceded that the evidence does not support the conclusion that the appointed person does not meet the established merit criteria. I agree with the complainant on this.
D. The evidence does not support the fact that the respondent established a bypass system
[77] The complainant alleged that the respondent had established a system to bypass the Act by choosing candidates on a discretionary basis for acting appointments of less than four months, to then appoint them for indeterminate periods. Although this is a serious allegation, the complainant did not present any evidence to support it. In other words, the allegation did not make it past the phase of a bald assertion.
[78] The fact that the respondent appointed Mr. Leroux to the EG-04 position for a period of less than four months, and then extended his acting appointment for a term of more than four months does not support the allegation that the respondent was wrongfully and systematically bypassing the Act. Suffice it to say that in the absence of any evidence in support of this allegation, the analysis ends there (Ralph v. Canada (Attorney General), 2010 FCA 256 at para. 34; Yang v. Canada (Citizenship and Immigration), 2015 FC 650 at para. 28).
[79] Thus, the complainant did not demonstrate on a balance of probabilities, which was his burden, that the respondent abused its authority, either in the application of merit or in the choice of process.
[80] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
IV. Order
[81] The complaint is dismissed.
January 28, 2025.
FPSLREB Translation.
Adrian Bieniasiewicz,
a panel of the Federal Public Sector
Labour Relations and Employment Board