Date: 20090608
Docket: T-1168-07
Citation: 2009 FC 574
Ottawa, Ontario, June 8, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CHRIS
HUGHES
Applicant
and
ATTORNEY GENERAL OF CANADA,
ALLISON DONALD, CAROL GREEN, DEAN
HENDERSON,
HEATH LARIVIERE, MICHELLE MUKAHANANA,
STACIE
ROSENTRETER AND JENNIFER SOBERG
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 in Victoria, Sidney and Bedwell Harbour, British Columbia (Victoria
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 Victoria 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 four
reasons. They were that:
1.
All of the appointments made from the Victoria pre-qualified pool
in December of 2004 and March of 2005 did not respect the merit principle
because there was no evidence that the appointees were assessed and met the
qualifications established for the newly reclassified Customs Inspector
positions.
2.
Those appointments were not made in accordance with the
department's delegation agreement with the Commission and were in violation of
the Public Service Employment Regulations, 2000, SOR/2000-80 (Regulations)
because the department had no authority to make appointments to the PM-03 group
and level from a pre-qualified pool established at the PM-02 group and level.
3.
Seven of the indeterminate
seasonal appointments made through the Victoria pre-qualified pool were invalid because the
appointees had been previously appointed through the same pre-qualified pool.
This violated subsection 5(3) of the Regulations. Two of the term appointments
made in December of 2004 were invalid for the same reason.
4.
One successful candidate was
improperly appointed to a term position in March of 2005. The appointment was
improper because the candidate did not meet a geographic criteria which
candidates in the selection process were required to meet in order to be
eligible for appointment.
[2] Two allegations made by Mr. Hughes were, by agreement,
not initially investigated by the investigator. This was because the need to
investigate those allegations was dependent upon the outcome of the
investigation into other allegations. The allegations not initially
investigated were that:
·
The marking of some of the
candidates' competencies was inconsistent.
·
The department had
"blacklisted" Mr. Hughes.
[3] At
the conclusion of the investigation, the investigator determined that given the
findings of his investigation there were no longer grounds to investigate these
two allegations. This was because Mr. Hughes had received a term appointment
when the first round of appointments from the Victoria
pre-qualified pool were made in 2003. The second and third round of
appointments were invalid. Investigating the two allegations would not alter
the fact that the second and third round of appointments were invalid.
[4] 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 its conclusion that for a number of reasons it
was not possible to recreate the conditions which existed when the Victoria
pre-qualified pool was originally established. The Commission ordered the
following corrective measures be taken:
·
that
the results of the selection process be set aside;
·
that
[Canada Border Services Agency] reassess the seven persons who were appointed
from the PQP and who are still employed with [Canada Border Services
Agency] against the qualifications required for the reclassified position of
Border Services Officer (PM-03);
·
that
[Canada Border Services Agency] provide the results of the reassessment
of the seven persons to the Vice-President of the Investigations Branch, Public
Service Commission, no later than 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 be revoked within sixty (60) days
following the date of this Record of Decision.
[5] This
is an application for judicial review of the Commission’s decision.
Background Facts
[6] Selection
process 2003-2092-PAC-3961-7003 was posted on October 11, 2003, and closed on
October 30, 2003. Its purpose was to create a pre-qualified pool of candidates
to staff Customs Inspector positions on an indeterminate and term basis in
Victoria and Sidney, British Columbia, including Bedwell Harbour.
[7] At
that time customs inspection fell within the mandate of the Canada Customs and
Revenue Agency and the provisions of the Act did not apply to the staffing of
positions in that agency. However, while the selection process was ongoing,
the Canada Border Services Agency (CBSA) was established on December 12, 2003.
The CBSA was established within the core Public Service, and all appointments
within the CBSA became subject to the provisions of the Act.
[8] In
the selection process, 23 candidates were found to be qualified, including Mr.
Hughes. They were placed in the Victoria
pre-qualified pool which was established on March 5, 2004.
[9] Mr.
Hughes, along with a significant number of the other successful candidates, had
qualified in an earlier selection process for Customs Inspectors in the Victoria area
(2002 pre-qualified pool). That selection process was held, and the 2002
pre-qualified pool was established, while customs inspection was still within
the mandate of the Canada Customs and Revenue Agency. The 2002 pre-qualified
pool expired on March 31, 2004 after the CBSA was created.
[10] In
March and April, 2004, thirteen candidates from the 2002 pre-qualified pool
were offered term appointments for the summer of 2004. Eleven candidates
accepted. During this same time period, eight candidates from the Victoria
pre-qualified pool, including Mr. Hughes, were offered term employment for that
summer. Mr. Hughes and four others accepted. Mr. Hughes' term of
employment began on May 3, 2004 and ended on September 30, 2004.
[11] The
department had intended to offer Mr. Hughes the term appointment through the 2002
Victoria pre-qualified pool. However, Mr. Hughes was employed by
the Canada Revenue Agency at that time. That agency refused to allow him to be
seconded so that he could be assigned work as a Customs Inspector. By the time
the department learned that the Canada Revenue Agency would not agree to the
secondment, the 2002 pre-qualified pool had expired. Therefore, the department
advised that Mr. Hughes was hired through the Victoria
pre-qualified pool.
[12] Two
other individuals who, like Mr. Hughes, were selected in both the 2002
pre-qualified pool and the Victoria pre-qualified pool were both offered summer
employment through the Victoria pre-qualified pool. One accepted.
[13] Five
other persons who were qualified in both pools were appointed from the 2002 pre-qualified
pool.
[14] On
October 8, 2004, the Customs Inspector positions were renamed Border Services
Officers and were reclassified as PM-03 positions. This reclassification
followed the transfer of the Citizenship and Immigration port of entry functions
to the CBSA. A significant change was to add to the duties of Border Services
Officers responsibility for conducting secondary immigration examinations and
exercising delegated authority to accept or refuse individuals seeking entry to
Canada.
[15] In
December of 2004, eight candidates in the Victoria
pre-qualified pool were offered term employment. As the positions had been
reclassified to PM-03, the offers were made at that level. Five candidates
accepted this offer.
[16] In
March of 2005, three candidates from the Victoria
pre-qualified pool were offered term employment at the PM-03 level. One
accepted. Eleven candidates from this pool were offered seasonal indeterminate
employment at the PM-03 level. Eight candidates accepted.
[17] No
offer was extended to Mr. Hughes in either December of 2004, or March of 2005.
[18] The
Victoria pre-qualified pool expired on March 31, 2005. Seven
employees who received appointment from this pool remained in the employ of the
CBSA at the PM-03 level at the time of the investigation (seven incumbents).
[19] Mr.
Hughes filed his complaint with the Commission with respect to the Victoria
pre-qualified pool on January 6, 2005, and an investigation resulted.
[20] The
investigator rendered his decision on May 30, 2006. Mr. Hughes, the CBSA and
the individual respondents were given the opportunity to provide submissions to
the Commission about appropriate corrective measures.
[21] 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
[22] The
reasons of the Commission were relatively brief and were as follows:
REASONS FOR RECORD OF DECISION 07-06-IB-42
As a general rule, the objective of conciliation is to
explore what corrective measures are required to rectify the deficiencies
identified in a selection process which impeded the proper application of the
merit principle. The examination of corrective measures is premised on the
assumption that the nature of the defects may in fact be correctable. In this
case, the Commission considers that the defects are not correctable.
The investigation pursuant to section 7.1 of the Public
Service Employment Act, R.S.C. 1985, c. P-33, as amended (former PSEA),
found that several deficiencies existed in the appointment strategy adopted by
the department to fill PM-02, Customs Inspector positions. More specifically,
the pre-qualified pool (PQP) was not properly used. Appointments for PM-03
positions were made from the PQP which was established for PM-02 positions,
persons were appointed more than once from it and were also appointed to
positions other than those for which the PQP was intended. The latter occurred
because the position underwent a significant change in its functions and was
reclassified. The defects were in the establishment and use of the PQP, not in
the assessment tools or the assessment itself.
The combination of the fatal deficiencies identified by the
investigation along with the existing context of the new positions and new
regulations, leads to the conclusion that it is not possible to re-create the
conditions which existed when the PQP was originally conducted. It follows
that the results of the selection process must be set aside.
This leaves the matter of the seven individuals, namely Allison
Donald, Carol Green, Dean Henderson, Heath Lariviere, Michelle Mukahanana,
Stacie Rosentreter and Jennifer Soberg, who received appointments from that PQP
and who remain employed with the Canada Border Services Agency (CBSA). Under
subsection 6(2) of the former PSEA, when the Commission revokes a
person’s appointment, it may thereupon appoint that person at a level that in
its opinion is commensurate with the qualifications of that person. To achieve
a similar final outcome in this corrective measure, the Commission orders that
the CBSA take concrete steps to reassess that these individuals are qualified
for the positions they hold. The CBSA is to provide the results of the
reassessment of the seven individuals to the Vice-President of the
Investigations Branch no later than thirty (30) days following the date of this
Record of Decision. Should it become necessary, a current successful
candidate’s appointment will be revoked if he or she fails to be found
qualified by the CBSA.
It should also be noted that if the seven individuals were
revoked as part of this corrective measure, the deputy head could reassess and
reappoint them pursuant to 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.
With respect to the complainant’s own situation, there can
be no question of making any retroactive appointment as the positions are now
substantially different from those for which the PQP was originally
established. In subsequent selection processes, he has failed to be found
qualified for the position of PM-03, Border Services Officer.
It should also be noted that the high turnover rate of the
incumbents for these positions necessitate 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.
The Issues
[23] 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 under illegal employment
contracts to benefit and continue in the staffing process?
2. Did
the Commission commit a reviewable error by allowing corrective measures to
effectively give promotions to candidates that applied to a lower level job
with different qualifications and a different classification?
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
unappointed successful 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 err in law in setting aside the entire selection process instead
of only revoking the illegal contracts and addressing the appointment phase of
the selection process?
6. Did
the Commission delays in investigating, issuing corrective measures, and
allowing the respondents to keep their jobs, while awaiting corrective
measures, give the respondents an unfair advantage?
7. Should
the Commission have ordered the CBSA to exhaust the Victoria pre-qualified pool
retroactive to June 2004 to the Vancouver positions in light of the fact that
the Vancouver investigation showed none of the candidates were assessed
properly?
[24] 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 recommendations about corrective
measures?
3. Did
the failure of the Commission to check the CBSA April 2005 competition for
other candidates that may have been unsuccessful show bias or favouritism?
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 respondent misapply the case law cited, McAuliffe?
6. Did
the Commission err by not considering the applicant’s pass marks in the Victoria
competitions from 2003 and 2004?
7. Did
the incorrect statements by the conciliator that the applicant was not in the Victoria
pre-qualified pool cause the respondent to issue erroneous corrective measures?
8. Are
the corrective measures flawed in relation to one Border Services Officer due
to the CBSA’s material non-disclosure?
9. Do
the actions of the Commission in May 2006 show favouritism when they changed
the proposed corrective measures from revoking the seven illegal contracts to
allowing them to keep their jobs as the Commission was worried about their
benefits?
[25] 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
[26] Contemporaneously
with the release of these reasons I issued reasons for judgment in Court file
T-1167-07 cited as 2009 FC 573 (companion reasons). This file also involved a
challenge brought by Mr. Hughes to a decision of the Commission made under
section 7.5 of the Act. There, an investigator appointed under section 7.1 of
the Act had also found Mr. Hughes’ complaint about the process used to select
candidates into a pre-qualified pool for appointment to Customs Inspector,
PM-02 positions in Vancouver to be well-founded.
[27] Commencing
at paragraph 19 of the companion reasons I considered the standard of review to
be applied to the issues. I concluded that the second and third issues set out
above raised issues of natural justice and procedural fairness so that the
standard of review analysis did not apply to those issues. I also concluded
that the fourth issue set out above should be reviewed on the
reasonableness standard.
[28] For
the reasons given in the companion reasons, I reach the same conclusion here.
Application of the Standard
of Review
Should the corrective
measures ordered by the Commission be set aside due to undue delay?
[29] Mr. Hughes submits that the corrective
measures should be struck down given "the unreasonable delays and mistakes
by the [Commission] from January 2005 through July 2005 and the lengthy delay
issuing corrective measures from June 2006 to June 2007."
[30] 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.
[31] 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 30, 2006. Thus, the relevant period for the purpose of
considering any delay is that from May 30, 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.
[32] I find the relevant dates and chronology to be
as follows:
1.
May 30, 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 Mr. Hughes and the seven incumbents
participate in a selection process for the PM-03 Border Services Officer
position. Assessment tools were to be developed to avoid any unfair advantage
accruing to the incumbents.
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 2, 2006: The individual respondents, being the
seven incumbents, requested a one-week extension of the deadline for their
submissions.
9.
October 2, 2006 and October 5, 2006: Mr. Hughes opposed the
granting of the extension. He stated that an "extension would show favourtism
[sic] towards the Department and the Department's candidates."
10.
October 6, 2006: The extension was granted.
11.
October 6, 2006: Mr. Hughes responded to the conciliator that both
the decision to grant the extension and the proposed corrective measures showed
bias. More substantial comments were provided on October 18, 2006.
12.
December 22, 2006: The Acting Director of the Regional
Operations Investigations Branch of the Commission (Acting Director) took
carriage of the conciliation phase.
13.
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. The draft corrective measures
set aside the selection process, required the CBSA to document the assessment
of the seven incumbents against the qualifications required for the Border
Services Officer PM-03 position and stated that if necessary appointments would
be revoked if an incumbent was not found to be qualified. No corrective
measures were proposed for Mr. Hughes.
14.
March 16, 2007: The CBSA stated that it was satisfied with the
proposed corrective action.
15.
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.
16.
May 30, 2007: A briefing note was prepared for the President of
the Commission. The briefing note recommended that the Commission order corrective
measures that were somewhat different from those that were ultimately adopted.
The briefing note recommended that the appointments of the seven incumbents be
revoked, but that the revocation be suspended to allow the CBSA to assess the
qualifications of the incumbents.
17.
June 13, 2007: The Commission issued its decision. In essence
it required the seven incumbents to be reassessed. Their appointments would be
revoked if an individual was not found to be qualified for the position.
[33] 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.
[34] 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.
[35] 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.
[36] Any delay in this case does not rise to this
exceptional threshold for reasons that include the following.
[37] First, the Commission was dealing with
relatively complex circumstances. The CBSA had been re-organized during the
selection process so as to bring its appointments under the provisions of the
Act. By the time the Commission was considering corrective measures, the Act
had been repealed. In October of 2004, the PM-02 positions had been
reclassified on a national basis to PM-03 positions. The qualifications of the
position changed with the reclassification. The Commission had concluded on
those facts that it was not possible to re-create the conditions which existed
when the Victoria pre-qualified pool was selected. The defects identified by
the investigator could not be corrected. The complexity of the circumstances
provides some explanation for the time taken by the Commission, as does the
number of opportunities afforded to the parties to comment on proposed
corrective measures.
[38] Second, the investigator did not find any
defect in the assessment tools or in the assessment of the candidates in the Victoria
pre-qualified pool. Notwithstanding that Mr. Hughes was in that pool, he could
not be appointed retroactively from that pool to a PM-03 Border Services
Officer position. To do so would be to repeat one of the errors found by the
investigator. 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.
[39] Related to this is the fact that 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.
[40] On the evidence before me, 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?
[41] In his supplementary record, Mr. Hughes raises
the issue of bias as quoted above at paragraph 24. Specifically, he puts in
issue whether bias motivated Commission employees to: fail to check the April
2005 CBSA competition to identify other candidates who may have been
unsuccessful; remove him from the corrective measures proposed in February of
2006 when he had been included in the initial proposal; and, change the
corrective measures in May of 2006 so as not to revoke the incumbents’
appointments. In his supporting written submission he states:
26. The PSC [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.
[42] 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.
[43] 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.).
[44] 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 initial proposed corrective measures contemplated that Mr. Hughes be
part of a selection process for the PM-03 Border Services Officer position does
not by itself establish any perception of bias. The reason for the deletion of
this proposed measure is explained in a credible fashion in the Commission's
reasons.
[45] Similarly, the decision not to revoke the
appointments of the incumbents does not by itself establish any perception of
bias. As explained in the Commission’s reasons, even if their appointments
were revoked they could be re-appointed if they met the essential
qualifications of the position. Moreover, under either of the last formulations
of the corrective measures the incumbents were to be assessed and their
appointments revoked if they failed to be found to be qualified.
[46] Finally, 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 appellate 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]
[47] 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?
[48] 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.
[49] There is a lack of jurisprudence that has
considered the Commission's powers under section 7.5 of the Act. The
Commission’s powers under subsection 21(3) have, however, 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."
[50] Turning to the reasonableness of the
Commission’s exercise of that discretion, at the outset the Commission accepted
the findings of the investigator. It is important therefore to understand the
nature of the errors found by the investigator.
[51] The investigator found that:
·
appointments for PM-03 positions were made from the
pre-qualified pool which was established for PM-02 positions;
·
the Victoria pre-qualified pool was established only
for a period of one year, rather than two years;
·
the names of candidates appointed from the pool were not
removed following their appointments;
·
several candidates in the pool received multiple
appointments; and
·
candidates were appointed from this pool at the same time
that another pool existed.
[52] The Commission considered the nature of those
deficiencies in light of the fact that the PM-02 position no longer existed.
The Commission concluded that this made it impossible to re-create the
conditions which existed when the Victoria
pre-qualified pool was conducted. Given the reclassification of the PM-02
position and the change in the duties and responsibilities that resulted when
the PM-02 position was reclassified, it was reasonably open to the Commission
to conclude that it could not re-create the conditions that existed at the
relevant time.
[53] The Commission then considered the situation of the
seven incumbents. The Commission wrote:
“[u]nder subsection 6(2) of the [Act], when the Commission
revokes a person's appointment, it may thereupon appoint that person at a level
that in its opinion is commensurate with the qualifications of that person. To
achieve a similar final outcome in this corrective measure, the Commission
orders that the CBSA take concrete steps to reassess that these individuals are
qualified for the positions they hold …. Should it become necessary, a current
successful candidate’s appointment will be revoked if he or she fails to be
found qualified by the CBSA.”
[54] This too was a conclusion that was reasonably open to
the Commission. It insured that the seven incumbents were qualified to hold
the positions they had been appointed to.
[55] The Commission then turned its attention to
Mr. Hughes' own situation. He could not be appointed retroactively to the
Border Services Officer PM-03 position because he had been selected for
possible appointment to the PM-02 position. 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.
[56] Further, 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.
[57] I find the decision of the Commission to be supported
by the evidence, transparent and justified. It falls within the range of
possible, acceptable outcomes because it is defensible in respect of the facts
and the law.
[58] 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.
[59] I incorporate by reference from the companion
reasons:
(a)
paragraphs 60 to 61 which deal with the voidable nature of
public service appointments;
(b)
paragraph 63 which explains why the Commission could not
order the CBSA to exhaust the Victoria pre-qualified pool
retroactive to June of 2004;
(c)
paragraphs 66 to 69 which deal with the McAuliffe
decision; and,
(d)
paragraphs 70 to 71 which explain why the Commission was
not obliged to follow the investigator's recommendations with respect to
corrective measures.
[60] I make the following additional comments.
[61] First, Mr. Hughes states that the CBSA withheld
relevant information about one of the incumbents. The information was that the
employee was under investigation for allegations of unprofessional Internet
postings. However, in a document the Commission noted that there was no
indication that the incumbents were not qualified. Mr. Hughes argues that the
Commission would not have held this view had the CBSA made proper disclosure,
and that the corrective measures would have been different for this incumbent.
[62] I disagree. These allegations were not relevant to
the Commission's exercise of discretion. Subsequent, misconduct does not by
itself establish that a person lacked the qualifications for their position.
[63] Second, Mr. Hughes argues that incorrect statements
made by the conciliator to the effect that Mr. Hughes was not in the Victoria
pre-qualified pool caused the Commission to issue erroneous corrective
measures.
[64] Again, I respectfully disagree. No one from the Victoria
pre-qualified pool could be appointed to the Border Services Officer PM-03
position. This is because their membership in that pool only evidenced their
qualifications for the Customs Inspector PM-02 position.
Conclusion
[65] 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).
Email this Content