Docket: T-1008-05
AND
BETWEEN:
JOSÉE CARON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Docket: T-1009-05
AND
BETWEEN:
MARTYNE
GUIMOND
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
Docket: T-1010-05
AND
BETWEEN:
DIANE PERRON
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Court
jointly heard five applications for judicial review presented by public service
employees, each one of whom was the subject of an inquiry under
subsections 6(2) and 6(3) of the Public Service Employment Act,
R.S.C., 1985, c. P-33 (the Act). Following this inquiry, the Public Service
Commission (PSC) revoked their appointments because they did not respect the
conditions specified by the Health Canada delegation of authority under which
they were authorized. In addition, the PSC decided not to reappoint them to
another position in the federal Public Service.
[2]
The
applicants contested the legality of these decisions, especially those by which
they were not reappointed to other positions. They submitted that the PSC
breached its duty of procedural fairness because, inter alia, it did not
give sufficient reasons for its decisions and, in the alternative, because
these decisions were arbitrary and patently unreasonable in light of the
findings of the inquiries.
[3]
For the
following reasons, the Court has concluded that, except for in docket T‑1009-05
(Martyne Guimond), the PSC’s decisions not to appoint the applicants to
other positions in the public service must be quashed.
FACTS
[4]
From 1998
to 1999, the applicants had been hired as temporary staff at the Centre of
Excellence for Shared Pay and Benefits Services (CESPBS), an organization
jointly developed by Health Canada, Public Works and Government Services Canada
(PWGSC) and the PSC in the spring of 1998. The goal of CESPBS was to offer pay
and fringe benefits services to its client departments. From 1996 to 1998,
CESPBS accepted several large-scale projects, including the Veterans’ Hospital
and projects for Citizenship and Immigration Canada.
[5]
All of the
applicants were related in some way to the person in charge of staffing for
CESPBS (neighbour, sister-in-law, friend of a nephew, etc.). Their initial periods
of employment were extended on several occasions, and they received various
promotions.
[6]
When
Treasury Board’s Long Term Specified Period Employment Policy came into
force on April 1, 2003, the applicant had held term employment for a total
of three years without any interruption in service for 60 consecutive calendar
days. To comply with this policy, in March 2003, the newly appointed
Director of Human Resources at Health Canada certified that the applicants met
the applicable quality standards, and the five applicants were offered
indeterminate appointments to their respective substantive positions.
[7]
In April
2003, PWGSC became responsible for CESPBS, thereby replacing Health Canada.
Therefore, the five employees reported to this department when the inquiries
were conducted and when the impugned decisions were rendered.
[8]
At the
beginning of 2003, the Regional Office of the PSC received an informal
complaint from employees of Health Canada. They claimed that some employees of
CESPBS had benefited from nepotism and bureaucratic favouritism when they were
hired. Only one employee made a formal complaint to the PSC. In her complaint,
she alleged that six employees—the applicants and another person who had since
resigned from the federal public service—had an advantage when they were
appointed because of their relationship with a manager at CESPBS.
[9]
The
results of an internal inquiry conducted by Health Canada at the request of the
PSC showed that there had not been any nepotism or favouritism. The Recourse
Branch of the PSC then assigned Denis Garceau to conduct a second inquiry
under section 7.1 of the Act. This inquiry was conducted from March to
December 2003. In his report, Mr. Garceau concluded there had been
major shortcomings in the casual and term appointments of the employees in
question.
[10]
In its
Record of Decision No. 04‑02‑RB‑244, the PSC ordered
Health Canada to improve the quality of its internal investigation procedures
and take concrete measures to exercise greater control over casual and term
employment. It also ordered PSGSC to remind the manager involved about the
rules related to the hiring of family members and friends.
[11]
It also
ordered PWGSC to ensure that this manager, who was still with CESPBS, would no
longer sit on selection committees or exercise any delegated authority over
staffing. She was to receive new training on staffing and professional ethics
was to no longer have any supervisory responsibilities with respect to the
persons involved in the inquiry. In addition to other corrective measures, the
PSC ordered investigations under subsections 6(2) and (3) of the Act into
the appointments that were the subject of Mr. Garceau’s inquiry report.
[12]
Three
boards of inquiry were appointed. They were given a mandate to conduct an inquiry
and make recommendations concerning the possibility of revoking the
appointments of the applicants on a ground set out in subparagraphs 6(2)(a)
and 6(2)(b) of the Act, which read as follows:
|
(2) Par dérogation aux autres
dispositions de la présente loi mais sous réserve du paragraphe (3), la
Commission révoque ou empêche la nomination - externe ou interne – d’une
personne à un poste de la fonction publique lorsque, selon elle :
|
(2)
Where the Commission is of the opinion
|
- cette
personne ne possède pas les qualités nécessaires pour s’acquitter des
fonctions du poste auquel elle a été - ou est sur le point d’ être -
nommée en vertu d’une délégation de pouvoirs accordée au titre du
présent article;
|
- that
a person who has been or is about to be appointed to or from within the
Public Service pursuant to the authority granted by it under this
section does not have the qualifications that are necessary to perform
the duties of the position the person occupies or would occupy, or
|
- la
nomination contrevient aux conditions fixées à la délégation de pouvoirs
par laquelle elle a été autorisée.
|
- that
the appointment of a person to or from within the Public Service
pursuant to the authority granted by it under this section has been or
would be in contravention of the terms and conditions under which the
authority was granted,
|
|
La Commission peut ensuite nommer cette
personne à un niveau qu’elle juge en rapport avec ses qualifications.
|
the Commission, notwithstanding anything in
this Act but subject to subsection (3), shall revoke the appointment or
direct that the appointment not be made, as the case may be, and may
thereupon appoint that person at a level that in the opinion of the
Commission is commensurate with the qualifications of that person.
|
[13]
On this
point, it should be noted that subsection 6(3) of the Act provides as follows:
|
3) Dans le cas d’une nomination - interne ou externe -, l’exercice par la
Commission du pouvoir de révocation prévu au paragraphe (2) est
subordonné à la recommandation d’un comité chargé par elle de faire une
enquête au cours de laquelle le fonctionnaire et l’administrateur général en
cause, ou leurs représentants, ont l’occasion de se faire entendre.
|
(3) An appointment to or from within the Public Service may be revoked by the
Commission pursuant to subsection (2) only on the recommendation of a
board established by the Commission to conduct an inquiry at which the
employee and the deputy head concerned, or their representatives, shall be
given an opportunity to be heard.
|
[14]
In
addition, the PSC gave the boards of inquiry instructions to make a
recommendation about the possibility of nominating the applicants to other
positions within the Public Service commensurate with their qualifications
(subsection 6(2) in fine).
[translation]
I would stress that if the
board of inquiry concludes your appointments did not respect the principles of
selection according to merit and the provisions of the Public Service
Employment Act, the investigator may, if required, recommend the revocation
of one or several appointments and your appointment to another position
in the Public Service considered by the Commission to be commensurate with your
qualifications. [Emphasis added.]
[16]
In
addition, the applicants were told to attend a meeting scheduled for
May 10, 2004, during which [translation] “the investigators will
explain the procedures of the board of inquiry and will answer your questions
concerning how the board operates”. The applicants attended this meeting as
well as other meetings scheduled by the boards of investigation. A union
representative accompanied them at these meetings.
[17]
Given that
there were facts that were common to all six inquiries (one concerned
Ms. Dumais, who is not an applicant), the first hearing was held jointly
on May 10, 2004. Other joint hearings were subsequently held, as were
separate hearings before each of the boards of inquiry.
[18]
On March
18, 2005, the chairpersons of the boards of inquiry, Ginette Trottier
(Johanne Belzile, Josée Caron), Nathalie Leblanc
(Nathalie Bouthot, Martyne Guimond) and Adrian Rys
(Diane Perron), submitted their reports to the PSC. Naturally, because
they deal with different appointments and facts, they are not identical, but
many paragraphs and especially the conclusions are identical.
[19]
The boards
concluded that the first term appointments and the subsequent appointments of
each of the applicants were made contrary to the terms and conditions under
which the delegation of authority from PSC to Health Canada had been made, and
that these appointments had not been made according to the principles of
selection according to merit.
[20]
In all the
cases, the reports underlined the fact that the information collected by the
boards of inquiry showed that there was no evidence that the applicants were
qualified for the positions to which they had been appointed during their
employment with Health Canada, and that the Department did not respect the
Public Service of Canada’s fundamental values regarding staffing, given the way
in which the applicants were hired and the approach used in doing so.
[21]
However,
it was stated in each one of the reports that [translation]
“the
applicants are not responsible for the Department’s irregularities as revealed
by the boards of inquiry, since they were not in a position to know if the
decisions made by the Department were legal and in compliance with staffing
procedures”.
[22]
All the
boards recommended that the appointments of the applicants be revoked under
subsection 6(2) of the Act.
[23]
As far as
the second part of their terms of reference are concerned, the reports of the
boards did not contain many details. The assessments conducted by PWGSC were
not reproduced. However, even though these assessments were quite distinct for
each of the applicants, each of the reports concluded as follows:
[translation]
At present, I cannot recommend
that she be appointed to another position commensurate with her qualifications.
A request for the assessment of the candidate had been made to the department
now responsible for CESPBS (PWGSC), but the information on record does not
warrant this alternative.
[24]
In every
one of these cases, the PSC released a record of decision in which it specified
the following:
The Commission hereby accepts
the findings of the Board of Inquiry report . . . and, pursuant to its
authority under subsection 6(3) of the Public Service Employment Act,
revokes the indeterminate appointment of Ms. . . .
This revocation is based on
the finding that her appointments contravened the terms and conditions of the
delegation of authority to Health Canada by which these appointments were made.
The revocation will thus take effect fourteen (14) calendar days after the
signature of this decision.
Furthermore, pursuant to its
discretionary authority under subsection 6(2) of the Act, the Commission
decides not to appoint Ms. . . . to another position in the federal Public
Service.
[25]
In each of
the cases before me, there is only an affidavit by Denise Fortin, a legal
assistant. This affidavit is essentially used to file the certified record of
the decision-maker.
[26]
The
parties did not file any affidavit about what had been done and said about the
appointment of the applicants to other positions, in spite of the fact this was
the crux of the matter in dispute. Accordingly, the Court directed the parties
to supply additional information about what was said at the various meetings
held by the boards of investigation concerning the procedure to be followed and
the information required by these boards of inquiry in connection with these
appointments. The Court also wanted to clarify whether the applicants had
permission to make written submissions following the hearings, given that
PWGSC’s assessments had not been filed at the hearings before the boards and
that the letter dated July 12 (see paragraph 28 below) does not
mention whether the applicants had received a copy.
[27]
The
respondent’s additional submissions on this point show that, at the initial
meeting on May 10, 2004, the board chairpersons held a round table discussion
and advised the parties that they would have a chance to cross-examine each of
the witnesses.
The only relevant discussions presented to the Court were the following:
[translation]
Ms. Brault (representing Public Works):
Would it be possible for PWGSC to intervene and make its recommendations at the
end of the inquiries and before the final conclusions are made?
Mr. Rys (Chairman of the Board of
Inquiry): In case our conclusion is to recommend revocation?
Ms. Brault: Yes.
Mr. Rys: . . . You may make a
recommendation for reappointment. There’s no problem.
. . .
(Cassette
No. 1, May 10, Side A)
Mr. Rys (Chairman): According to our terms of
reference, we are to conduct an inquiry into the appointments, and the second
part of our terms of reference is, if necessary, to make a recommendation about
deployment, reappointment to other positions of the persons revoked, if this is
necessary, depending on our findings in the first part of our terms of
reference. According to our terms of reference, we must have something to be
able to make a recommendation about the reappointment of the employees. I know
that you are not in a position to give us something right now, but you have
two choices: one choice would to be to identify the positions for which
the employees are qualified and to which they could be deployed in case we
recommend revoking the appointments and to give us assessments of the
qualifications for these positions and to give them to us in writing following
the hearings. If it is impossible to identify such positions, you may
give us a general assessment of these employees, which we could use as a basis
to make a recommendation in our report if the Commission considers appointing
these employees to positions as they become available at such a group and a
level. I think that it is better to identify a specific position because it
is easier, but I understand that it is impossible to do so right away.
If you are unable to give us something on which we can base our recommendation,
we cannot make such a recommendation. [Translated as reproduced in the
original]
Ms. Brault (representing Public Works): I understand completely.
[Emphasis added]
(Cassette No. 2, May 10,
Side A)
[28]
Following
this discussion, PWGSC supplied the assessments of the applicants in a letter
from Normand Couture, dated July 12, 2004. It is to this evidence
that the reports of the inquiry cited at paragraph 23, supra,
refer.
[29]
Even
though all the files which the PSC (and the boards of inquiry) had on hand were
filed in the records of the applicants, nothing shows that this letter dated
July 12 or the enclosed assessments were disclosed to each one of the applicants
and that they had a chance to answer them. As well, nothing showed that the
boards of investigation or the PSC had advised the applicants or PWGSC that the
information received was insufficient to allow them to make a recommendation
about reappointment.
ISSUES
[30]
In their
memoranda, the applicants stated that the PSC did not provide sufficiently
detailed reasons for its decision and that it had not taken into consideration
the evidence on record, which showed that they were certainly qualified to hold
a position within the Public Service. By doing so, the PSC allegedly made an
error of mixed fact and law or an error of law in refusing to exercise its
discretion.
[31]
At the
hearing and in their additional written submissions, the applicants corrected
their line of argument and specified that the PSC failure to sufficiently
support its decision was a breach of its duty of procedural fairness. The same
was alleged with regard to its failure to advise them that the PWGSC
assessments were deficient.
[32]
Therefore,
the issues to be decided are the following:
i)
Did the
PSC breach its duty of fairness?
ii)
Are the
decisions of the PSC not to appoint the applicants to positions for which they
were qualified patently unreasonable?
[33]
The Court
is not required to conduct a functional and pragmatic analysis when the issue
raised is one of procedural fairness. As a general rule, if the PSC breached
its duty of procedural fairness, the Court must quash the decision.
[34]
However,
if the decisions are sufficiently supported by reasons and do not otherwise
show that the PSC did not act fairly, the Court will have to determine if they
are warranted. This would normally require a functional and pragmatic analysis
to determine the standard of review applicable to such an issue. However, since
the Court is satisfied that the decision does not meet the standard requiring
the greatest possible degree of deference, namely that of patent
unreasonableness, it is not necessary to conduct such an analysis.
[35]
As I have
mentioned, the applicants submitted that the PSC’s decision is not sufficiently
supported by reasons, as the boards simply concluded that they were not at that
time (“at present”) in a position to make a recommendation. The conclusion is
based solely on the PWGSC assessments and does not take any other evidence into
consideration. The PSC did not explain in what way the assessments were
deficient.
[36]
Contrary
to the decision to revoke the appointments under subsection 6(2) of the
Act, which is subject to the condition precedent of a recommendation of
revocation made by the board of inquiry, the PSC had the chance to complete the
record and obtain missing information from PWGSC or other third parties.
[37]
In these
circumstances, the PSC even had the duty to advise PWGSC and the applicants of
the problem and allow them to remedy the deficiencies identified, if possible.
[38]
In its
memorandum, the respondent confirms this interpretation, stating the following:
[translation]
Having considered the assessment submitted by PWGSC to allow
it to recommend an appointment to another position within the Public Service, the
board of inquiry can only note that no information was submitted to it that
would allow it to assess Johanne Belzile’s qualifications to hold
employment in the federal public service . . . .
[Emphasis
added]
[39]
In addition, the respondent submitted that the burden of
proof was on the applicants. Considering subsection 6(2) of the Act, the letter
dated April 16 and the explanations given to them, they knew or should
have known that the PSC could not appoint them to another position unless it
determined that they were qualified for a specific position. On this
point, the respondent noted in its additional written submissions that, under
subsection 3(2) of the Staffing Manual, the PSC delegated its authority to
the general administrator, who must determine the required qualifications and
the conditions of employment for a position. This provision also refers to a
competition and to a selection committee.
[40]
At the hearing, the respondent also argued that the
conclusion reached by the boards of inquiry must be considered to be a negative
conclusion based on the fact that the assessments submitted by PWGSC did not
warrant a positive recommendation.
[41]
The Court notes that this second interpretation seems to
completely ignore the first sentence of the conclusion. It is obvious that this
new interpretation is contrary to the one all the parties had adopted before
the hearing. It does not conform to the understanding the Court has and at most
shows that this conclusion is ambiguous.
[42]
In any event, it is not at all clear that the respondent’s
interpretation adds anything when we consider the content of the information
supplied by PWGSC in light of the explanations given by the boards of inquiry
to the parties, including PWGSC, at the meeting on May 10.
[43]
In its preamble, PWGSC explained the following:
[translation]
PWGSC is using the competencies in the
Employability Passport to assess the majority of the employees.
In the field of pay and benefits, six
competencies are especially important:
1 Focus on service
2 Communication
3 Teamwork
4 Thinking and acting
5 Interpersonal relationships
6 Learning and moving forward
[44]
The
department then reached its conclusions about the skills of each of the
applicants
for a given group and level:
[translation]
|
Person’s name
|
Josée Caron
|
|
Current
group and level
|
Acting
AS-02 appointment
|
|
Group
and level of substantive position
|
CR-05
|
|
Assessment
|
CESPBS
has just finalized an AS-02 selection process where knowledge of pay and
benefits and the six competencies referred to above were assessed. Ms. Caron
ranked first in the competition. She was therefore able to demonstrate
through an official competition that she is qualified for an AS-02 position.
|
[45]
Ms. Caron
had advised the boards of inquiry that as a result of this competition she was
qualified for an AS-02 position.
[translation]
|
Person’s
name
|
Johanne
Belzile
|
|
Current
group and level
|
AS-02
|
|
Group
and level of substantive position
|
CR-04
|
|
Assessment
|
Ms.
Belzile has been working as a pay and benefits advisor since she arrived at
PWGSC. We cannot assess her at the CR-04 group and level. However, in
performing her current duties, she meets our requirements in relation to the
competencies referred to above. In this respect, we can consider her to meet
the requirements at a lower level.
|
[46]
In
addition to this information, paragraph 115 shows that the report of the
inquiry in Ms. Belzile’s case contained a written assessment dated
October 8, 2002, in which it was mentioned that, after Ms. Belzile
was advised of some concerns regarding her behaviour (absences and personal
telephone calls at work), significant changes were noted, and Ms. Belzile
quickly met the established objectives. It seems that after two months of
observation Ms. Belzile’s supervisor was of the opinion that her
performance was very satisfactory. However, the record contains some
contradictory evidence, because in the report of the inquiry it was mentioned
that during the inquiry Ms. Belzile held an AS-01 position and did not qualify
in the AS-02 competition. However, as mentioned in its report, the board of
inquiry did not refer to this evidence.
[47]
With
regard to Diane Perron and Nathalie Bouthot, PWGSC stated the following:
[translation]
|
Person’s
name
|
Diane
Perron
|
|
Current
group and level
|
AS-01
|
|
Group
and level of substantive position
|
CR-05
|
|
Assessment
|
Ms.
Perron has been working as a pay and benefits trainee since she arrived at
PWGSC. We cannot assess her at the CR-05 group and level. However, the CR-05
group and level is comparable to the AS-01 level in terms of salary. In this
respect, we believe we can consider her to meet the requirements of the CR‑05
group and level, which generally focusses more on transactional functions.
|
|
Person’s
name
|
Nathalie
Bouthot
|
|
Current
group and level
|
|
|
Group
and level of substantive position
|
CR-04
|
|
Assessment
|
Ms. Bouthot meets all the requirements
with respect to the six competencies. She clearly demonstrates
professionalism in her day-to-day work, in relations with both clients and
colleagues.
|
[48]
Finally,
PWGSC gave a negative assessment of Martyne Guimond as follows:
[translation]
|
Person’s
name
|
Martyne
Guimond
|
|
Current
group and level
|
CR-05
|
|
Group
and level of substantive position
|
CR-05
|
|
Assessment
|
Martine
Guimond was an acting AS-02 until January 2004. Following an assessment of
unsatisfactory performance, she returned to her position as a CR-05
compensation assistant in January and began extended sick leave on
January 28, 2004. For this reason, we are unable to assess
Ms. Guimond’s performance of her CR‑05 duties. However, the
identified shortcomings that led to the termination of her acting appointment
pertain to competencies that are also required at the CR-05 level, namely,
focus on service, thinking and acting, and teamwork.
|
[49]
It should
be remembered that on May 10 the chairpersons of the boards of inquiry
mentioned to PWGSC that the Department had two choices: to assess the
applicants for specific positions to which they could be deployed or to make a
general assessment for a given group and level that would allow PSC to appoint
them, if it intended to do so, to positions that could eventually become
available at these groups and levels.
[50]
With this
in mind, it seems illogical and patently unreasonable to conclude that the
information supplied, for example, for Ms. Caron, who placed first in the AS-02
competition (presumably qualifying her for a permanent appointment to the
specific position that she had been holding on an acting basis), was
insufficient for the board to make a recommendation.
[51]
The
respondent was unable to give a valid explanation on this point. However, the
respondent did note that the allegations of nepotism and favouritism to which
Mr. Garceau referred in his report could warrant the decision rendered by
the PSC.
[52]
In these
cases, the Court does not have to decide if the PSC could render its decision
on such a basis, as this is not what it relied on here. It rendered its
decision on the basis of the conclusions reached by the boards of investigation,
which did not in any way deal with this issue when they drew their conclusions
on this aspect of their terms of reference.
[53]
It is
obvious that PWGSC was of the view that applicants Belisle, Bouthot and Perron
also had the skills required to hold positions at a given group and level.
Because the same text had been used in all the reports, including the report
concerning Ms. Caron, the reasons do not allow us to determine whether it
was the nature or the quality of the assessments of these persons that was
insufficient. For example, was PWGSC required to assess the applicants through
a competition? The Court cannot answer this question, considering the
explanations given on May 10, which simply referred to a general
assessment and to the assessment applicable to Ms. Caron.
[54]
Martyne
Guimond is the only applicant for whom the conclusion reached by the board of
inquiry was not illogical or patently unreasonable, considering the information
to which it referred. In this case, the conclusion to the effect that the
information received from PWGSC did not warrant a positive recommendation or
was insufficient to warrant any recommendation at all was perfectly reasonable.
In fact, PWGSC specified that the performance of this employee was not
satisfactory and that she did not have the qualifications deemed necessary for
either of the two groups considered, that is, CR-05 or AS-02.
[55]
The Court
also notes that if, as the respondent states, only the general administrator
with delegated staffing authority in a given department may determine the
qualifications and conditions of a position and assess the candidates, it is
obvious that PWGSC and the PSC had more information on this point than did the
applicants.
[56]
It is not
up to the Court to determine whether in all cases in which the information
supplied by the employer is insufficient the boards of inquiry or the PSC have
the obligation to obtain additional information.
[57]
The
content of the duty of procedural fairness of the PSC varies according to the
context. Considering the information that was supplied on May 10 to the
applicants, to Health Canada and to PWGSC, the Court is satisfied that if, as
was mentioned by the respondent, PWGSC had to conduct a specific assessment
(competitions or other procedures) for specific positions to which the
applicants could be deployed, the PSC should have given PWGSC and the
applicants (except for Martyne Guimond) the chance to update the
assessments submitted in July. The concerned parties had to know precisely what
they had to supply to the boards of inquiry and to the PSC so that it could
exercise its discretion. In reaching this conclusion, the Court took into
consideration the five factors mentioned in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817.
[58]
The first
factor is the nature of the decision being made and the process followed in
making it. The role of the PSC, to which the government gave exclusive
jurisdiction in staffing matters, is to ensure that the persons to whom it
delegates its authority by agreement do not abuse it and that they respect the
principles of merit and impartiality. The process specified in
subsections 6(2) and 6(3) of the Act gives the PSC a means of exercising
control and dealing severely with cases of abuse.
[59]
Revocation
under paragraph 6(2)(b) may have dramatic consequences for the employee
in question. Therefore, Parliament provided that the authority to revoke cannot
be exercised without an inquiry and a positive recommendation to this effect.
[60]
It may be
presumed that part of the reason why Parliament gave the PSC the power to
reappoint employees to positions commensurate with their aptitudes was to
protect innocent victims of the abusive practices of the authority to whom the
PSC delegated its staffing powers. In this regard, the Act ensures that the PSC
has elbow room. Nothing shows that it must use the process provided for in
subsection 6(3) of the Act. Although the only criterion mentioned in the
Act is competency, it is quite clear that transparency and impartiality are
part of the principles that are to guide the PSC in the exercise of its
authority.
[61]
The second
factor is the statutory scheme. The Act does not provide for a right of appeal,
and this argues in favour of greater procedural protection.
[62]
Thirdly,
the rigour of procedural protections is often proportional to the impact of the
decision on the person concerned. The applicants do not have the right to be
reappointed to another position. This is a privilege. However, there is no
doubt that the decision of the PSC not to reappoint them has significant and
serious consequences for the applicants.
[63]
The fourth
factor, legitimate expectations, warrants increased procedural protection. In
this case, although it was not required to do so, the PSC chose to use the same
process as for revocation by instructing the boards of inquiry to make
recommendations concerning compensation.
[64]
The PSC
mentioned at paragraph 7 of the document dated January 1990 describing the
terms of reference and procedure of the boards of inquiry that the report of
the inquiry was to be sent directly to it, as the PSC was to analyze it on the basis
of the observations and comments made by the parties, if applicable, and
make a decision as soon as possible. Even if no specific promise was made on
this point, considering the explanations given on May 10 and the content
of the PWGSC assessments, the parties could legitimately expect that the PSC or
the boards of inquiry would contact them if, for example, contrary to what was
said to them, the assessments received necessarily had to concern specific
positions and the applicants had to be assessed by a selection committee as
part of a competition process.
[65]
As regards
the fifth factor, the nature of the deference due to the decision-maker, it is
obvious that the PSC has more expertise in staffing matters than the Court.
However, the procedure it chose shows that it acknowledges the right of the
parties to fully participate in the decision‑making process on this
point. In some cases, it accepts that additional comments and observations will
be required to allow it to make an informed decision, even after receiving the
report of the board of inquiry.
[66]
On the
basis of these same factors, the Court is also of the view that the reasons for
decision of the PSC (which include the conclusions of the reports of the boards
of inquiry) are insufficient to allow the applicants (except for
Martyne Guimond) and the Court to determine what was missing in the
assessments supplied by PWGSC or to assess the legality of the decision.
[67]
The Court
notes that it would be appropriate for the PSC to specify to the union
representatives and the employees concerned what information is to be supplied
so that it can exercise its discretion and how the assessment of the employees’
aptitudes is to be conducted.
ORDER
THE COURT ORDERS that:
1. Except in T-1009-05, the
applications for judicial review are allowed with costs.
2.
The
decisions of the PSC not to appoint Johanne Belzile, Josée Caron,
Nathalie Bouthot and Diane Perron to another position are quashed.
3. The PSC shall reconsider this
matter in respect of the applicants after having given them and PWGSC the
opportunity to provide assessments and additional submissions on this point.
“Johanne Gauthier”
Certified true translation
Michael Palles
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