Date: 20090608
Docket: T-1167-07
Citation: 2009 FC 573
Ottawa,
Ontario, June 8, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CHRIS
HUGHES
Applicant
and
ATTORNEY GENERAL OF CANADA and
SCOTT BARKER, ROBERT A. BELL, KIRSTEN CARRIER,
ANGELA CHIN, MASON COOKE, MANDY DHUDWAL,
DANIELLE
GETZIE, DANIEL GREENHALGH, ALISON
HAYCOCK,
BRIANNA HEWSON, CHRISTINE HOOPER, DAVID
JOHNSON,
LAURA KEBLE, LAURA KNIGHT, WILLIAM
MACRAE, DAVID ROBERTS,
JESSICA SHUM, TRENT VAN HELVOIRT,
JEFFREY WICHARUK
Respondents
REASONS FOR JUDGMENT
[1] Mr.
Hughes, the applicant, was found not to be qualified for selection into a
pre-qualified pool of candidates for appointment to Customs Inspector,
PM-02 positions at the Vancouver International Airport, the Metro Vancouver District
and the Pacific Highway District (Vancouver pre-qualified pool). As a result,
Mr. Hughes filed a complaint under the former Public Service Employment Act,
R.S.C. 1985, c. P-331 (Act)
with the Public Service Commission (Commission) concerning the Vancouver
pre-qualified pool. An investigation was then conducted pursuant to section
7.1 of the Act. The investigator concluded that Mr. Hughes' complaint was
well-founded for two reasons:
1.
The selection process was not conducted in a manner which
conformed to the merit principle because two of the qualifications established
at the outset by the hiring manager were never assessed.
2. The selection board failed to apply its own instructions to
the candidates with respect to verifying whether their written submissions were
received on time, leaving open the possibility that candidates who should have
been eliminated from the selection process were appointed.
[2] Other
aspects of Mr. Hughes' complaint were held to be unfounded.
[3] By
virtue of section 7.5 of the Act, the Commission was given discretion based
upon this investigation to take "such corrective action as the Commission
considers appropriate." The Commission accepted the findings of the
investigator and ordered corrective measures. The corrective measures taken by
the Commission took into account the fact that during the course of the
selection process the position of Customs Inspector, PM-02 was nationally
reclassified to the position of Border Services Officer, PM-03. The Commission
ordered the following corrective measures be taken:
·
that [Canada Border Services Agency] provide to the Commission
evidence of the assessment, at the time of the reclassification, of the
qualifications of the current employees who were appointed from the
pre-qualified pool and whose positions were reclassified from PM-02 Customs
Inspector positions to the PM-03 Border Services Officer positions. This
evidence must be provided to the Vice-President of the Investigations Branch,
Public Service Commission, within thirty (30) days following the date of this
Record of Decision;
·
should it become necessary, that the appointment of the
individuals who fail to be found qualified will be revoked within sixty (60)
days following the date of this Record of Decision.
[4] This
is an application for judicial review of the Commission’s decision.
Background Facts
[5] The
selection process was posted in June 2003 and was an open competition. At that
time Canada Border Services was part of the Canada Customs and Revenue Agency
and the Act did not apply to staffing its positions. On December 12, 2003, the
Canada Border Services Agency [CBSA] was established as a department within the
Public Service. From that date all appointments were subject to the Act.
[6] Over
2,000 persons applied for selection to the Vancouver pre-qualified pool.
[7] Candidates
who met the education and experience requirements were invited to write the
Customs Inspector Test, which was designed to assess five separate assessment
factors. Those who passed the test were then asked to complete a written
exercise entitled Portfolio of Competencies. If a candidate’s written response
met established criteria, the candidate was invited to an interview designed to
test the candidate's effective interactive communication. Candidates who met
that competency were then invited to a second interview to assess seven
competencies.
[8] Mr.
Hughes applied for selection into the Vancouver pre-qualified pool. He had
previously been successful in selection processes for Customs Inspector
positions and had been placed in pre-qualified pools in relation to those
competitions. Mr. Hughes had been hired as a Customs Inspector at the Victoria
Ferry Port in the summers of 2002, 2003, and 2004.
[9] Mr.
Hughes passed the initial stages of the selection process and was invited to a
second interview. At that interview he was found to be unqualified in the
competencies of "Dealing with Difficult Situations" and
"Self-Confidence."
[10] Twenty-two
candidates were successful at all stages of the selection process and
were placed in the Vancouver pre-qualified pool, which was established on June
22, 2004. Twenty candidates were appointed to indeterminate positions through
this process. One candidate declined an offer. One candidate was appointed to
a Customs Inspector position in Victoria, British Columbia, through a different
selection process. The Vancouver pre-qualified pool was exhausted on January
7, 2005.
[11] As
a result of his complaint, Mr. Hughes advanced a number of allegations before
the investigator. Two grounds of complaint were held to be well-founded as set
out above. The investigator found the remaining allegations to be unfounded.
Those allegations were that:
·
The selection board was biased against Mr. Hughes.
·
Mr. Hughes was improperly disqualified from the "Dealing
with Difficult Situations" and "Self-Confidence" competencies.
[12] As
noted above, after the selection process was posted, but before the Vancouver
pre-qualified pool was established, the position of Customs Inspector, PM-02
was reclassified nationally to the position of Border Services Officer, PM-03.
Mr. Hughes says that on February 21, 2007, the position was again changed
to an FB-03 classification and group due to a decision of the Public Service
Labour Relations Board.
[13] The
investigator rendered his decision on May 31, 2006. Mr. Hughes, the CBSA and
the individual respondents were given the opportunity to provide submissions to
the Commission about appropriate corrective measures.
[14] On
June 13, 2007, the Commission issued its Record of Decision which accepted the
findings of the investigator and ordered the corrective measures detailed
above.
The Decision of the
Commission
[15] The
reasons of the Commission were brief and were as follows:
REASONS FOR RECORD OF DECISION 07-06-IB-41
The position of Customs Inspector, PM-02 was nationally
reclassified in October 2004 to the position of Border Services Officer,
PM-03. The PM-03 standard of competence included the two qualifications
initially established by the hiring manager (Enforcement Orientation and
Professionalism), as well as the three qualifications not listed in the
competition notice (Dealing with Difficult Situations, Decisiveness and
Self-Confidence).” At the time of reclassification, the Canada Border Services
Agency (CBSA) assessed each of the five (5) qualifications in question in all
selection processes. Enforcement Orientation and Professionalism are part of
the locally conducted preliminary assessment, while the other three are part of
a thirteen week assessment/training phase at the Border Services Learning
Centre in Rigaud, Quebec.
The standard of competence for the Border Services Officer
position now only exists at the PM-03 level. It is reasonable to conclude that
each employee was found to be fully qualified at the time of reclassification.
This means merit would have been satisfied. For these reasons, the Commission
is seeking verification that the employees appointed from the pre-qualified
pool and whose positions were reclassified to the PM-03 positions were assessed
at the time of the reclassification. It would be redundant and ineffective at
this stage, to require that CBSA reassess qualifications for a position and
level (PM-02) that no longer exists.
If the employees affected by this corrective measure on
were revoked, the deputy head could reassess and reappoint them using the
flexibility of the current Public Service Employment Act, R.S.C. 2003,
c. 22, ss. 12, 13, as amended, in which the standard is that the person to be
appointed meets the essential qualifications. Such a process would not provide
meaningful corrective action and would do little more than create an
administrative exercise.
With respect to the complainant’s own situation, he failed
to attain a passing score in two of the assessed qualifications: Dealing with
Difficult Situations and Self-Confidence. The investigation found no evidence
of bias on the part of the Selection Board. The complainant has since had an
opportunity to be assessed for the position of PM-03, Border Services Officer
and was again found not qualified, therefore no further action is required.
In reaching its decision, the Commission also considered
that the high turnover rate of the incumbents for these positions necessitates
that the CBSA regularly conduct appointment processes to replenish its staff in
several regions throughout Canada. Employment opportunities will continue to exist for
individuals who wish to re-apply in the future.
Lastly, on a separate matter, since the results of the
investigation make it clear that it is not possible to identify the late
submission of any individual Portfolio of Competences by any of the candidates,
at least with any degree of certainty, no further action is taken with respect
to that particular issue.
The Issues
[16] In
his original memorandum of fact and law, Mr. Hughes lists the issues to be:
1. Did
the Commission err in law by allowing persons that were hired in violation of
the Act and were unqualified for the position to keep their jobs through a
separate and unrelated reclassification process for a FB-03 Border Services
position instead of a PM-02 Customs Inspector position?
2. Did
the Commission commit a reviewable error by ignoring the late written
examinations and not setting aside the entire competition?
3. Was
the decision of the Commission in keeping with the merit principles, contract
law and the Act and Regulations?
4. Did
the Commission err in law by not allowing the applicant and the remaining unsuccessful
candidates to participate in the reassessment through the transitional
provisions of the Public Service Modernization Act, S.C. 2003, c. 22?
5. Did
the Commission fail to take into consideration the ruling made in the Victoria
complaint that stated PM-02 Customs Inspector pools could not be used to staff
PM-03 Border Services Officer positions for the October 2004 and January 2005
job contracts?
6. Did
the Commission ignore the irregularities around the hiring of a specific
individual?
7. Did
the Commission’s delay in investigating and issuing corrective measures, while
allowing the individual respondents to keep their jobs while awaiting
corrective measures, give the individual respondents an unfair advantage?
8. Should
the Commission have ordered the CBSA to exhaust the Victoria pre-qualified pool
retroactive to June 2004 and the Vancouver positions in light of the fact that
the Vancouver investigation showed none of the candidates were assessed
properly and the applicant and 13 others were in a qualified, older
pre-qualified pool in Victoria?
[17] In his supplemental memorandum of fact and law,
Mr. Hughes lists the issues as:
1. Given
the unreasonable delays and mistakes by the Commission from October 2004
through July 2005 and the lengthy delay issuing corrective measures from June
2006 to June 2007 should the corrective measures be struck down?
2. Should
the Commission have ignored the investigator’s recommendation concerning
corrective measures?
3. Does
it violate the merit principle to cut out 39 improperly disqualified candidates,
but allow 18 improperly hired candidates to have promotions?
4. Was
it bias or a merit violation on the part of certain Commission employees to cut
out the applicant from corrective measures in February 2006 even though the
applicant was included in corrective measures from September 2005 to January
2006?
5. Did
the Commission misapply the case law it cited, specifically the McAuliffe decision?
6. Did
the Commission err by not considering the applicant’s pass marks in the Victoria
competitions from 2003 and 2004?
7. Did
incorrect statements made by the conciliator that the applicant was not in the
pre-qualified pool cause the Commission to issue erroneous corrective measures?
8. Given
the material non-disclosure around one successful candidate's alleged sexual
assault and breach of trust, should the Commission be ordered to review
corrective measures around this candidate with knowledge of the incident?
[18] I frame the issues as:
1.
What is the applicable standard of review to be applied to the
Commission's decision?
2.
Should the corrective measures ordered by the Commission be set
aside due to undue delay?
3.
Were certain employees of the Commission biased against Mr.
Hughes?
4.
Were the corrective measures ordered by the Commission
reasonable?
Standard of Review
[19] The
second and third issues are concerned with natural justice and procedural
fairness and so the standard of review analysis does not apply to these issues.
See Canadian Union of Public Employees (C.U.P.E.) v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100. It is for the
Court to determine without affording deference to the decision-maker whether
the requirements of natural justice and procedural fairness were met.
[20] With
respect to the remaining issue, the Court is required to ascertain whether the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question. Only
if this inquiry is unsuccessful is a standard of review analysis required.
See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 at paragraph
62.
[21] No
jurisprudence was cited that has considered the degree of deference to be
afforded to the Commission when exercising its discretion under section 7.5 of
the Act. It is, therefore, necessary to analyze the required factors in order
to identify the proper standard of review. Those factors include:
1.
the presence or absence of a privative clause;
2.
the purpose of the Commission as determined by interpreting its
enabling legislation;
3.
the nature of the question at issue; and
4.
the expertise of the Commission.
[22] In
many cases it is not necessary to consider all of the factors because some may
be determinative. See: Dunsmuir at paragraph 64.
[23] In
the present case, the determinative factors are the nature of the
administrative regime established by the Act and the Commission's recognized
expertise.
[24] This
Court has acknowledged that the Commission is responsible for the supervision
of the public service and the on-going implementation of the Act. See: Harquail
v. Canada (Public Service Commission) (2004), 264 F.T.R.
181 at paragraph 28. The Act's object is the effective management of the
Public Service and the protection of its integrity. See: Harquail at
paragraph 29.
[25] A
key foundation of the Act is the requirement, found in subsection 10(1) of the
Act, that “[a]ppointments to or from within the Public Service shall be based
on selection according to merit, as determined by the Commission”. Section 7.1
of the Act enables the Commission to conduct investigations on any matter
within its jurisdiction. Section 7.5 of the Act authorizes the Commission, on
the basis of an investigation, to take "such corrective action as the
Commission considers appropriate." This discretion is broader than that
conferred upon the Commission by subsection 21(3) of the Act which allows the
Commission to "take such measures as it considers necessary to remedy the
defect" in the selection process.
[26] The
scope of discretion given to the Commission, combined with the "discrete
and special" nature of the Public Service regime, and the Commission's
expertise within that regime signal that deference is due to decisions of the
Commission. See: Dunsmuir at paragraph 55. Thus, the Commission's decision
should be reviewed on the reasonableness standard.
Application of the Standard
of Review
Should the corrective
measures ordered by the Commission be set aside due to undue delay?
[27] Mr. Hughes submits that the corrective
measures should be struck down given "the unreasonable delays and mistakes
by the [Commission] from October 2004 through July 2005 and the lengthy delay
issuing corrective measures from June 2006 to June 2007."
[28] In support of this submission is Mr. Hughes'
evidence that:
·
He was assured that corrective measures take a maximum of three
months to complete. He became emotionally and financially stressed due to the
length of time the Commission took to implement corrective measures.
·
In July of 2006, the Commission provided proposed corrective
measures to the parties. After receiving submissions from Mr. Hughes and the
CBSA, the Commission provided revised proposed corrective measures on September
20, 2006. Thereafter, Mr. Hughes heard nothing for months from the Commission.
·
He became very stressed and frustrated with the Commission's
delays. He filed a service standard complaint with the President of the
Commission.
·
The documents Mr. Hughes received from the Commission show that
it repeatedly delayed his file through its own mistakes. His file was
unnecessarily delayed by nine months in the investigation stage and another
nine to ten months in the corrective measures stage.
[29] At the outset, I note that Mr. Hughes
complains of significant delay going back to his initial effort to file a
complaint, and including delay in the investigative stage. This application
for judicial review is concerned only with the Commission's decision of June
13, 2007 relating to corrective measures. Section 7.5 of the Act requires such
a decision to be based upon an investigation. Here, the investigation was not
concluded until May 31, 2006. Thus, the relevant period for the purpose of
considering any delay is that from May 31, 2006 to June 13, 2007. The
Commission could not take any step with respect to proposed corrective measures
until it received the report of the investigator.
[30] I find the relevant dates and chronology to be
as follows:
1.
May 31, 2006: The investigator issued his report.
2.
June 26, 2006: Mr. Hughes submitted his submissions with respect
to corrective measures.
3.
July 21, 2006: the CBSA submitted its submissions with respect
to corrective measures.
4.
July 31, 2006: Mr. Hughes provided his reply to the CBSA's
submissions.
5.
July 31, 2006: The CBSA provided its final submissions.
6.
August 17, 2006: The conciliator prepared proposed corrective
measures. Included was the proposal that the candidacy of all successful and
unsuccessful candidates be reconsidered to determine whether the failure to
assess the two qualifications resulted in their elimination from further
consideration.
7.
September 20, 2006: The conciliator provided the proposed
corrective measures to Mr. Hughes and the CBSA and sought comments thereon.
The conciliator also asked the CBSA to notify individuals who might be affected
by the proposed corrective measures.
8.
October 6, 2006: Mr. Hughes responded to the conciliator that
the proposed corrective measures showed bias. More substantial comments were
provided on October 10, 2006.
9.
December 22, 2006: The Acting Director of the Regional
Operations Investigations Branch of the Commission (Acting Director) took
carriage of the conciliation phase.
10.
February 16, 2007: The Commission notified Mr. Hughes and the
CBSA that it was considering different corrective measures from those it had
earlier provided to the parties. The Commission provided an opportunity to
comment on the new proposed corrective measures. In fact, the draft corrective
measures stated "the Commission decides that it will not take any
corrective measures in this matter."
11.
March 16, 2007: The CBSA stated that it was satisfied with the
proposed corrective action.
12.
March 30, 2007: Mr. Hughes provided his lengthy response which
strongly objected to the new proposed corrective measures. In his response, he
advised that he would amend his pending Canadian Human Rights complaint to add
the Commission as a party and he was considering adding the Commission as a
party to his pending civil suit against the CBSA.
13.
May 30, 2007: A briefing note was prepared for the President of
the Commission. The briefing note recommended that the Commission order the
corrective measures that it ultimately adopted.
14.
June 13, 2007: The Commission issued its decision.
[31] As a matter of law, principles of natural
justice and the duty of fairness include the right to a fair hearing. Undue
delay in the processing of an administrative proceeding that impairs the
fairness of the hearing can be remedied at law. See: Blencoe v. British
Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph
102.
[32] In the present case, the evidentiary portion
of the process ended at the investigative stage. No issue arises that delay
impaired Mr. Hughes' ability to present his case because witnesses had died or
memories were lost. There is no issue of this type of unfairness arising from
delay.
[33] There are, however, other types of prejudice
than prejudice that impairs trial fairness. Unacceptable delay may amount to
an abuse of process even where the fairness of the hearing has not been
compromised. However, such cases are exceptional and few lengthy delays meet
this threshold. The delay must be clearly unacceptable and have directly
caused a significant prejudice in order to amount to an abuse of process. Put
another way, there is no abuse of process by delay per se. The party
relying upon the delay must demonstrate that the delay was "so oppressive
as to taint the proceedings." See Blencoe at paragraphs 115 and 121.
[34] Any delay in this case does not rise to this
exceptional threshold for reasons that include the following.
[35] First, the Commission was dealing with
relatively complex circumstances. The CBSA was re-organized so as to bring its
appointments under the provisions of the Act. In October of 2004, the PM-02 positions
were reclassified on a national basis to PM-03 positions. The qualifications
of the position changed with the reclassification. In the words of the
investigator "[r]eassessment of candidates in Vancouver position no longer
possible as position reclassified and qual[ifcation]s have changed." The
complexity of the circumstances provides some explanation for the time taken by
the Commission. This is also reflected in the number of times Mr. Hughes and
other parties were afforded the opportunity to respond to proposed corrective
measures.
[36] Second, the investigator found Mr. Hughes'
allegations of improper disqualification and bias to be unfounded.
Subsequently, Mr. Hughes was found not to be qualified for the Border Services
Officer PM-03 position (an entry-level position). It is difficult in that
circumstance to see how Mr. Hughes was prejudiced by the time taken by the
Commission to reach its decision about corrective measures. On the basis of
the investigator’s report, Mr. Hughes could have hoped, at best, that the
Commission order that he be reassessed. However, he had already failed the
selection process for the PM-03 position and the PM-02 position no longer
existed.
[37] Related to this is the fact that the briefing
note prepared for the President of the Commission, and the Commission's
reasons, recite that the "high turnover rate of the incumbents for these
positions necessitates that the CBSA regularly conduct appointment processes to
replenish its staff in several regions throughout Canada. Employment
opportunities will continue to exist for individuals who wish to re-apply in
the future." No challenge is made to this finding which is, in essence, a
finding of fact. The existence of those potential opportunities negates any
finding of prejudice. As such, no abuse of process due to delay is
established.
[38] On these facts, Mr. Hughes has not established
that the delay was so oppressive as to taint the proceedings.
Were certain employees of
the Commission biased against Mr. Hughes?
[39] In his supplementary record, Mr. Hughes raises
the issue of bias as quoted above at paragraph 17. Specifically, he puts in
issue whether bias motivated Commission employees to remove him from the
corrective measures proposed in February of 2006 when he had been included in
the initial proposal. In his supporting written submission he states:
26. The [Commission] employee who was
responsible for most of the delays was [the Acting Director]. Did his unit’s
mistakes and his mistakes cause him to develop a bias against the applicant?
The applicant went to the Federal Court numerous times for delay and made many
complaints of delay and incompetence against the [Commission].
27. Given [the Acting Director]’s history on
the file he should not have been involved in the corrective measures stage.
[40] Mr. Hughes adduced no evidence in support of
his allegation of bias. He relies on inferences he draws from his
interpretation of the documents that are before the Court.
[41] The test for disqualifying bias or apprehended
bias is whether an informed person, viewing the matter realistically and
practically and having thought the matter through, would think it more likely
than not that the decision-maker would not decide a matter fairly (whether
consciously or unconsciously). See: Wewaykum Indian Band v. Canada,
[2003] 2 S.C.R. 259 at paragraph 74. Tribunals are presumed to be impartial.
The burden of demonstrating the existence of bias, or apprehension of bias,
rests on the person alleging bias. A real likelihood or probability of bias
must be demonstrated. A mere suspicion of bias is not sufficient. See: R.
v. R.D.S., [1997] 3 S.C.R. 484 at paragraph 112; Arthur v. Canada
(Attorney General) (2001), 283 N.R. 346 at paragraph 8 (F.C.A.).
[42] I have reviewed the exhibits attached to the
affidavits of Mr. Hughes and Ms. Charbonneau. The evidence contained
therein falls short of establishing bias, either real or perceived. The fact
that the proposed corrective measures were amended to delete the proposal that
the candidacy of every person be reconsidered does not by itself establish any
perception of bias. The reason for this deletion is explained in a credible
fashion in both the briefing note and the Commission's reasons.
[43] As the Federal Court of Appeal noted in Lo
v. Canada (Public Service Commission Appeal Board) (1997),
222 N.R. 393 at paragraph 16, the appeal process set out in section 21 of the
Act is a limited process. It does not give an appellant any right to
appointment if his or her appeal is successful. An appellant can only seek the
integrity of the application of the merit principle. The Court quoted the
following passage with approval:
Under section 10 of the Public Service
Employment Act, "Appointments to ... the Public Service shall be based on
selection according to merit ...". The holding of a competition is one
means provided by the Act to attain the objective of selection by merit.
However, it is important to remember that the purpose of section 21
conferring a right of appeal on candidates who were unsuccessful in a
competition is also to ensure that the principle of selection by merit is
observed. When an unsuccessful candidate exercises this right, he is not
challenging the decision which has found him unqualified, he is, as section 21
indicates, appealing against the appointment which has been, or is about to be,
made on the basis of the competition. If a right of appeal is created by
section 21, this is not to protect the appellant's rights, it is to prevent an
appointment being made contrary to the merit principle, As, in my view,
this is what the legislator had in mind in enacting section 21, it seems clear
that a Board appointed under this section is not acting in an irregular manner
if, having found that a competition was held in circumstances such that there
could be some doubt as to its fitness to determine the merit of candidates, it
decides that no appointment should be made as a result of that competition. [emphasis
added]
[44] These comments have application to a complaint
made under section 7.1 of the Act. This means that the making of a complaint
did not entitle Mr. Hughes to personal relief. It follows that the absence of
personal relief does not by itself establish any apprehension of bias.
Were the corrective measures
ordered by the Commission reasonable?
[45] Review on the
reasonableness standard requires an inquiry into the qualities that make a
decision reasonable. Those qualities include the process of articulating the
reasons and the outcome. On judicial review, reasonableness is largely
concerned with the existence of justification, transparency and intelligibility
within the decision-making process. It is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law. See: Dunsmuir,
paragraph 47.
[46] As discussed above at paragraph 21, there is a
lack of jurisprudence that has considered the Commission's powers under section
7.5 of the Act.
[47] The Commission’s powers under subsection 21(3)
have been the subject of comment by the Court. The subsection has been held to
limit the Commission to remedying a defect in the impugned selection process.
See: Lo at paragraph 14. The Commission's discretion under section 7.5
of the Act is broader in that the Commission may issue the corrective measures
it "considers appropriate."
[48] Turning to the reasonableness of the
Commission’s exercise of that discretion, it is important to understand the
nature of the errors found by the investigator.
[49] The first error went to how the qualifications
for selection were assessed. Two of the qualifications were "Enforcement
Orientation" and "Professionalism". The investigator found that
"Enforcement Orientation" was assessed using the new competency
"Dealing with Difficult Situations." "Professionalism" was
assessed using the new competencies of "Self-Confidence" and
"Decisiveness." These three competencies were treated as
qualifications in their own right. However, the new qualifications were
different from the qualifications they replaced. Thus, the selection board
members, by substituting the new competencies for the original qualifications
established by the hiring manager, changed the qualifications for the position.
The new competencies did not demonstrate a candidate’s “Enforcement Orientation”
or “Professionalism” abilities.
[50] The Commission found as a fact that when the
position of Customs Inspector PM-02 was reclassified, the PM-03 standard of
competencies included “Enforcement Orientation”, “Professionalism”, “Dealing
with Difficult Situations”, “Decisiveness” and “Self-Confidence”. At the time
of reclassification, the CBSA assessed each qualification in the selection
process. The Commission went on to find that it was reasonable to conclude
that each employee was found to be qualified at the time of reclassification.
This satisfied the merit principle. Out of an abundance of caution, the
Commission required, as a corrective measure, that the CBSA provide evidence of
this within 30 days. The appointment of individuals found not to be qualified
would be revoked.
[51] In my view, the conclusion that the merit
principle would have been satisfied when the PM-02 position was reclassified,
was supported by evidence, is transparent and justified. It is a decision that
was reasonably open to the Commission. This is particularly so where, had the
appointments been revoked, the incumbents could have been reappointed under
section 73 of the current Public Service Employment Act, S.C. 2003, c. 22,
ss. 12, 13 if the Commission was satisfied that they met the essential
qualifications for the work to be performed.
[52] The conclusion of the Commission was also
reasonable when, as the investigator noted, a reassessment of all candidates
was no longer viable because the position had been reclassified with different
qualifications. Put simply, there was no point in reassessing qualifications
for a PM-02 position that no longer existed.
[53] The Commission then turned its attention to
Mr. Hughes' own situation. The investigator had found no bias and nothing that
vitiated the selection board's finding that Mr. Hughes was properly
disqualified on the basis of the qualifications of "Dealing with Difficult
Situations" and "Self-Confidence." Subsequently, in another
selection process Mr. Hughes was found to be unqualified for the position of
Border Services Officer, PM-03. It was not unreasonable for the Commission to
find that no further corrective measures were required with respect to Mr. Hughes.
[54] With respect to Mr. Hughes and all of the
other unsuccessful candidates, the Commission noted that there were regular
appointment processes to this entry level position so that employment
opportunities continued to exist for individuals who wished to re-apply. Given
the futility of re-assessing all candidates for a position that no longer
existed, this was not an unreasonable conclusion.
[55] The second flaw in the selection process
identified by the investigator was that it was possible that candidates who were
late in submitting their Portfolio of Competencies, and who should have been
eliminated from the selection process on that ground, were appointed.
[56] Candidates were required to have their Portfolio
of Competencies received by February 23, 2004. The selection board
wrongly accepted portfolios postmarked February 23, 2004 or earlier, even
if they were received after February 23, 2004. The investigator found that
because envelopes were not kept, there was no way of verifying whether any portfolios
arrived after the deadline.
[57] The Commission took no further action on this
because it was not possible to determine which portfolios might have been
submitted after the deadline. In my view, this was not an unreasonable
conclusion.
[58] I acknowledge that it would have been possible
for the Commission to revoke all appointments on this ground. Aside from the harshness
that would arise from the revocation of the appointment of a candidate whose portfolio
was submitted on a timely basis, under the new legislation (which came into
force before the investigator rendered his report) individuals whose
appointments were revoked could have been reappointed so long as they met the
essential qualifications for the work to be performed. Further, the fact that
a candidate was not screened out on account of the late filing of his or her portfolio,
ought not to significantly prejudice others. This was a selection for a
pre-qualified pool for an entry level position and appointment processes were
regularly conducted for this position. This is distinguishable from the
situations of assessment of relative merit where one person’s incumbency would
preclude another from obtaining that position.
[59] I have considered all of the issues raised by
Mr. Hughes. In view of the above analysis, I do not consider it necessary to
deal with each one. However, I wish to specifically address certain points
raised by Mr. Hughes.
[60] First, Mr. Hughes asserts that the successful
candidates have benefited because they were allowed to work and also receive
reclassifications they were not entitled to. He relies upon Still v. M.N.R.,
[1998] 1 F.C. 549 (C.A.) to argue that "illegal employment contracts are
void ab initio" so that the successful candidates "should not benefit
from the illegal contract."
[61] However, Still does not stand for that
proposition (see paragraphs 41-48 of the decision). Further, in an earlier
decision Murray v. Canada (Public Service Commission),
[1987] F.C.J. No. 473, the Federal Court of Appeal rejected the
proposition that public service appointments made contrary to the merit
principle were void ab initio. Such appointments are voidable. The
Court stated "[u]ntil the appointment is voided, an appointee is legally the
occupant of the position and is entitled and required to perform the duties and
to be paid the salary attached to it."
[62] Second, Mr. Hughes submits that the Commission
should have ordered the CBSA to exhaust another pre-qualified pool, the Victoria
pre-qualified pool, because he and 13 other individuals were in a qualified,
older pre-qualified pool in Victoria.
[63] However, the Victoria pre-qualified pool was
established for the purpose of staffing the older Customs Inspector, PM-02
position. The duties and responsibilities changed when the position was
reclassified as Border Services Officer, PM-03. (For example, Border Services
Officers conduct secondary examinations at ports of entry and have delegated
authority to refuse or allow individuals to enter Canada. Customs Inspectors
had no such authority). The CBSA could not use a pre-qualified pool at the
PM-02 level to hire at the PM-03 level because members in that pool had not
demonstrated that they met the qualifications for the new duties and
responsibilities.
[64] Third, Mr. Hughes argues that the CBSA
withheld from the Commission knowledge of the fact that allegations of sexual
assault and breach of trust had been made against a successful candidate. He
says that different corrective measures would have been ordered had this been
known.
[65] I disagree. Such allegations were not
relevant to the Commission's exercise of discretion. Subsequent misconduct
does not detract from an initial assessment of a person’s qualifications.
[66] Fourth, in an internal e-mail dated February 9, 2007,
the acting director referred to the decision of this Court in McAuliffe v. Canada
(Attorney General) (1997), 128 F.T.R. 39. Mr. Hughes argues that the
Commission misapplied this decision when it changed the corrective measures.
[67] In McAuliffe, Justice Dubé dealt with two
issues: procedural fairness and the application of the merit principle. The
Commission correctly followed the Court’s finding with respect to procedural
fairness by advising the parties that it was considering different corrective
measures and by affording the parties an opportunity to comment on the new
proposed corrective measures. However, Mr. Hughes relies upon the findings of
the Court with respect to the merit principle.
[68] In my view, such reliance is misplaced. In McAuliffe
what was at issue was the creation of eligibility lists. Candidates are
placed on eligibility lists in order of merit. See: subsection 17(1) of
the Act and Gariepy v. Canada
(Administrator of Federal Court), [1989] 2 F.C. 353
(T.D.).
[69] By contrast, a pre-qualified pool is a group of
individuals who have been assessed and are deemed to be equally qualified to be
hired for similar positions of the same occupational level. See: section 1 of
the Public Service Employment Regulations, 2000, SOR/2000-80.
This makes the Court’s comments with respect to relative merit inapplicable.
[70] Finally, Mr. Hughes argues that the Commission
should have followed the recommendation of the investigator with respect to
corrective measures.
[71] In my view, section 7.5 of the Act is clear
that it is for the Commission to order the corrective action that it views to
be appropriate. As such, the Commission is not required to follow the
recommendations of the investigator. Support for this view is found in Renée
Caron, Employment in the Federal Public Service, looseleaf (Aurora,
Ont.: Canada Law Book, 2006. There, at paragraph 6:3740, the author writes:
The investigator’s
role is essentially one of informal fact-finding and reporting. When the
fact-finding phase is complete, the investigator reports to the Commission. In
turn, the Commission may take, or order a deputy head to take, such corrective
action as the Commission considers appropriate. Notably, the Act does not
provide that the Commission must take or order corrective action; rather, it
“may” take or order such action. In addition, the corrective action to be
taken is that which, in the opinion of the Commission, is appropriate. Thus,
the Commission is not strictly bound by the recommendation of its investigator.
[emphasis added] [footnotes omitted]
Conclusion
[72] For these reasons, the application for
judicial review will be dismissed. In view of the time taken by the Commission
to reach its conclusion with respect to corrective measures, I think this is an
appropriate case for each party to bear its own costs. No costs are awarded.
“Eleanor
R. Dawson”
1. While
the Act has since been repealed, the parties agree that the provisions of the Act
continue to apply to this application. I agree. See: the transitional
provisions of the current Public Service Employment Act, S.C. 2003, c.
22, ss. 12, 13 or Bill C-25, An Act to modernize employment and labour
relations in the public service and to amend the Financial Administration Act
and the Canadian Centre for Management Development Act and to make
consequential amendments to other Acts, 2nd Sess., 37th
Parl., 2003, cl. 72 (assented to 7 November 2003).
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