Date: 20090610
Docket: T-1119-08
Citation:
2009 FC 618
Ottawa, Ontario,
June 10, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
DIANE CAMERON AND ANDRÉ MAHEUX
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
The applicant is seeking judicial review of a decision dated June 20, 2008, by
the Public Service Staffing Tribunal (Tribunal) under section 77 of the Public
Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (Act) allowing
the respondents’ complaints relating to a non-advertised appointment process. Furthermore,
as corrective action, the Tribunal ordered the applicant to review all
appointments made by the manager since the Act came into force, suspend the
staffing authority delegated to the manager during the review, and provide the
manager with training to ensure that she correctly understands her obligations
and responsibilities under the new provisions of the Act.
II. Facts
A. Background
[2]
While
awaiting the results of an internal appointment process advertised by the Department
of Human Resources and Social Development (Service Canada) to staff positions
for regional specialists in entitlement and appeals to boards of referees, group
and level PM-04, a manager in Service Canada needed to fill a Regional
Insurance Advisor position, at the PM-04 group and level, in an acting position
for a period of less than four months. The subsequent extension of this
appointment by a non-advertised internal process is the subject of the complaints
from the respondents.
B. Complaints
[3]
The
complaints filed by the respondents on November 24, 2006, alleged an abuse of authority
by the manager in the choice of the non-advertised appointment process as well
as in the application of merit according to subsection 30(2) of the Act. According
to them, the manager showed favouritism and acted in bad faith in making the
impugned appointment.
C. Tribunal’s decision
[4]
The
Tribunal found, in the decision under review, that the Service Canada manager
demonstrated bad faith and abused her authority by using a non-advertised
process to extend the appointment of the position in question. Since the
impugned acting appointment ended with the completion of the indeterminate
appointment process, and revocation was no longer an appropriate corrective action,
the Tribunal, in allowing these complaints, felt it had the authority to order the
following:
[109] In less serious circumstances, the Tribunal’s finding that a
manager abused the discretionary authority delegated to him or her may
constitute a sanction in itself. However, the Tribunal has determined in these
complaints that the testimony of Ms. Domingue was not credible on the question
of the experience sought. The allegations of bad faith were also found by the
Tribunal to have been proven, and the appointment was not based on merit.
[110] For all these reasons, the Tribunal orders the respondent to
review all appointments made by Ms. Domingue since the coming into force of the
PSEA, in order to ensure that they were in fact based on merit. The Tribunal
further orders the respondent to suspend the staffing authority delegated to
Ms. Domingue as a manager during the aforesaid review, and during that period,
to provide her with training to ensure that she correctly understands her
responsibilities and obligations under the new PSEA.
[5]
The
applicant is not challenging the Tribunal’s assessment of the evidence and
findings of fact on the merits of the complaints; however, he is challenging the
order on the grounds that the Tribunal allegedly acted without jurisdiction or exceeded
its jurisdiction by making the order it did.
III . Issue
[6]
The
Court is addressing only one issue:
Did the
Tribunal have the jurisdiction to order corrective action with respect to facts
that were not before it?
IV. Analysis
A. Standard of review
[7]
The
applicant maintains that the Tribunal’s interpretation of its authority to
order corrective action relates to its jurisdiction and, as such, is a question
of pure law subject to the standard of correctness.
[8]
The
respondents maintain that the issue involves the Tribunal’s interpretation of
its own statute; they point out that deference is in order and they find that
the standard of review in this case is that of reasonableness.
[9]
If it is
true that the Tribunal’s decision is protected by a privative clause (subsection 102(1)
of the Act) which renders it final and immune from judicial review, it is then
necessary to verify whether the Tribunal had the jurisdiction required to order
the corrective action with respect to facts having nothing to do with the
complaints before it. If it had jurisdiction, the standard of reasonableness
would apply; if not, the standard of correctness would apply and the decision
would not be entitled to deference if the Tribunal exceeded its jurisdiction.
[10]
As it
seems that the Court has not been called upon until now to rule on the issue, a
contextual analysis of the factors making it possible to identify the proper
standard of review must be carried out; in this proceeding, this involves the presence
of a privative clause, the purpose of the Tribunal as determined by
interpretation of enabling legislation, the nature of the question at issue and
the expertise of the Tribunal, without necessarily having to consider all of
these factors (Dunsmuir v. New Brunswick, 2008 SCC 9, paragraphs 62,
63 and 64).
B. Tribunal’s jurisdiction
[11]
The enabling
Act determines the purpose of the Tribunal as follows:
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88. (2) The mandate of the Tribunal is to consider and dispose of
complaints made under subsection 65(1) and sections 74, 77 and 83.
[Emphasis added.]
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88. (2) Le Tribunal a pour mission d’instruire les plaintes présentées
en vertu du paragraphe 65(1) ou des articles 74, 77 ou 83 et de statuer sur
elles. [Je souligne.]
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[12]
The Act is
careful to limit the jurisdiction of the Tribunal to the following complaints:
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65. (1) Where some but not all of the employees
in a part of an organization are informed by the deputy head that they will
be laid off, any employee selected for lay-off may make a complaint to the
Tribunal, in the manner and within the time fixed by the Tribunal’s
regulations, that his or her selection constituted an abuse of authority.
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65. (1) Dans les cas où seulement certains des fonctionnaires d’une
partie de l’administration sont informés par l’administrateur général qu’ils
seront mis en disponibilité, l’un ou l’autre de ces fonctionnaires peut
présenter au Tribunal, dans le délai et selon les modalités fixés par
règlement de celui-ci, une plainte selon laquelle la décision de le mettre en
disponibilité constitue un abus de pouvoir.
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|
. . .
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[…]
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74. A person whose appointment is revoked by the
Commission under subsection 67(1) or by the deputy head under subsection
15(3) or 67(2) may, in the manner and within the period provided by the
Tribunal’s regulations, make a complaint to the Tribunal that the revocation
was unreasonable.
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74. La personne dont la nomination est révoquée
par la Commission en vertu du paragraphe 67(1) ou par l’administrateur
général en vertu des paragraphes 15(3) ou 67(2) peut, selon les modalités et
dans le délai fixés par règlement du Tribunal, présenter à celui-ci une
plainte selon laquelle la révocation n’était pas raisonnable.
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|
. . .
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[…]
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77. (1) When the Commission has made or proposed
an appointment in an internal appointment process, a person in the area of
recourse referred to in subsection (2) may — in the manner and within the
period provided by the Tribunal’s regulations — make a complaint to the
Tribunal that he or she was not appointed or proposed for appointment by
reason of
(a) an
abuse of authority by the Commission or the deputy head in the exercise of
its or his or her authority under subsection 30(2);
(b) an
abuse of authority by the Commission in choosing between an advertised and a
non-advertised internal appointment process; or
(c) the failure of the
Commission to assess the complainant in the official language of his or her
choice as required by subsection 37(1).
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77. (1) Lorsque la Commission a fait une
proposition de nomination ou une nomination dans le cadre d’un processus de
nomination interne, la personne qui est dans la zone de recours visée au
paragraphe (2) peut, selon les modalités et dans le délai fixés par règlement
du Tribunal, présenter à celui-ci une plainte selon laquelle elle n’a pas été
nommée ou fait l’objet d’une proposition de nomination pour l’une ou l’autre
des raisons suivantes :
a) abus de pouvoir de la part de la Commission
ou de l’administrateur général dans l’exercice de leurs attributions respectives
au titre du paragraphe 30(2);
b) abus de pouvoir de la part de la Commission
du fait qu’elle a choisi un processus de nomination interne annoncé ou non
annoncé, selon le cas;
c)
omission de la part de la Commission d’évaluer le plaignant dans la langue
officielle de son choix, en contravention du paragraphe 37(1).
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. . .
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[…]
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83. Where the Commission has made or proposed an
appointment as a result of the implementation of corrective action ordered
under section 81, a complaint may be made to the Tribunal, in the manner and
within the period provided by its regulations, by
(a) the
person who made the complaint under section 77,
(b) the
person who was the subject of the appointment or proposed appointment
referred to in subsection 77(1), or
(c) any
other person directly affected by the implementation of the corrective
action,
on the grounds that the person was not appointed or proposed for
appointment by reason of an abuse of authority by the Commission or deputy
head in the implementation of the corrective action.
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83. Dans le cas où la Commission fait une
nomination ou une proposition de nomination en conséquence de l’application
des mesures ordonnées en vertu de l’article 81, les personnes ci-après
peuvent, selon les modalités et dans le délai fixés par règlement du
Tribunal, présenter à celui-ci une plainte selon laquelle le fait qu’elles
n’ont pas été nommées ou fait l’objet d’une proposition de nomination
constitue un abus de pouvoir de la part de la Commission ou de
l’administrateur général dans l’application des mesures correctives :
a) la personne qui a présenté la plainte en vertu de l’article
77;
b) la personne qui a fait l’objet de la proposition de nomination ou de
la nomination visées au paragraphe 77(1);
c) toute autre personne qui est directement touchée par
l’application des mesures correctives.
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[13]
Therefore,
it was in relation to the complaints filed by the respondents that the Tribunal had
to exercise its jurisdiction.
The Tribunal hears the complaint before it on the basis of the facts giving
rise to the complaint, and not on the basis of the facts not before it or facts
that could give rise to complaints that are not before it.
[14]
These
provisions of the Act thus required the Tribunal to determine in this case, since
it was the subject of the complaints filed under section 77 of the Act, whether
the manager had abused her authority by evaluating the qualifications of the
candidate on the basis of the requirements or needs of the work to be carried out,
at the time of filling a Regional Insurance Advisor position (at the PM-04
group and level) on an acting basis, and in subsequently extending this
appointment by a non-advertised internal process.
[15]
From the
moment the Tribunal found the complaints to be substantiated, a finding not
challenged by the applicant, the Act authorized it to impose the following remedies:
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81. (1) If the Tribunal finds a complaint
under section 77 to be substantiated, the Tribunal may order the
Commission or the deputy head to revoke the appointment or not to make the
appointment, as the case may be, and to take any corrective action that the
Tribunal considers appropriate.
[Emphasis added.]
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81. (1) S’il juge la plainte fondée, le
Tribunal peut ordonner à la Commission ou à l’administrateur général de
révoquer la nomination ou de ne pas faire la nomination, selon le cas, et de
prendre les mesures correctives qu’il estime indiquées.
[Je souligne.]
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[16]
The Tribunal
could have ordered the Public Service Commission (PSC) or the deputy head to
revoke the appointment and order the appropriate corrective action. But even if
we were to admit that revocation was not an appropriate corrective action, and
even if the Tribunal’s decision was a sanction in itself against the manager
who was being criticized for abusing her delegated discretionary authority, the
power given to the Tribunal under subsection 81(1) of the Act does not
authorize it to order just any corrective action; such action has to be within
its jurisdiction and pertain to the facts surrounding the appointment process
giving rise to the respondents’ complaints.
[17]
Moreover, even
when the Tribunal acts within its jurisdiction, the Act restricts its authority
to order corrective action. Thus,
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82. The Tribunal may not order the Commission
to make an appointment or to conduct a new appointment process.
[Emphasis added.]
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82. Le Tribunal ne peut ordonner à la
Commission de faire une nomination ou d’entreprendre un nouveau processus de
nomination.
[Je souligne.]
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[18]
The
combined reading of sections 77, 81 and 82 of the Act indicates that any
corrective action ordered by the Tribunal must address only the appointment
process that is the subject of the complaints before it. The corrective action
must aim at remedying the default identified by the Tribunal in hearing the
complaint before it, and cannot address other past or future appointment
processes not before the Tribunal further to a complaint made according to the Act.
[19]
The fact
that the only impugned acting appointment ended does not have the effect of withdrawing
the complaint from the Tribunal; however, the Tribunal is limited in such a
case to declaring that an abuse of authority occurred without being able to
revoke this appointment or order corrective action in respect of an appointment
process that no longer exists. Moreover, the Tribunal correctly recognized that
revocation in this case is not an appropriate action for these complaints; it
also recognized that the fact of deciding that the manager abused her
discretionary authority may constitute a sanction in itself.
[20]
We must
not lose sight of the fact that it is the appointment process on which the
complaint is based that is in question, not other appointment processes that
are not the subject of any complaint before the Tribunal. The manager could
have very well abused her discretionary authority during the appointment
process in dispute, but also fully understood her responsibilities and
obligations during the process followed for other appointments.
[21]
The
respondents’ complaints did not seek to bring before the Tribunal all of the
appointments made by the manager, and to give it free rein to order corrective
action that had nothing to do with the complaints.
[22]
Nevertheless,
the Tribunal ordered the following three corrective actions:
a. Review all appointments made
by the manager since the Act came into force;
b. Suspend the staffing authority
delegated to the manager during this review; and
c. Provide training to the
manager to ensure that she correctly understands her responsibilities and
obligations under the new provisions of the Act.
[23]
None of
these corrective actions is designed to exempt the appointment process before
the Tribunal from abuse of authority. These actions target past or future
appointment processes that are not the subject of any complaint before the
Tribunal.
Action I - Review all
appointments made by the manager since the Act came into force
[24]
Furthermore,
these actions also infringe on the PSC’s authority to delegate appointment authority
and to supervise this delegation, and displace the deputy head’s authority to
sub-delegate this authority, to exercise his or her discretion to hold a review
and to require that his or her employees take training. Parliament did not
speak in vain in expressing the following in the Act:
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15. (3) Where the Commission authorizes a deputy
head to make appointments pursuant to an internal appointment process, the
authorization must include the power to revoke those appointments and to take
corrective action whenever the deputy head, after investigation, is satisfied
that an error, an omission or improper conduct affected the selection of a
person for appointment.
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15. (3) Dans les cas où la Commission autorise un administrateur
général à exercer le pouvoir de faire des nominations dans le cadre d’un
processus de nomination interne, l’autorisation doit comprendre le pouvoir de
révoquer ces nominations — et de prendre des mesures correctives à leur égard
— dans les cas où, après avoir mené une enquête, il est convaincu qu’une
erreur, une omission ou une conduite irrégulière a influé sur le choix de la
personne nommée.
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[25]
The Act
already authorizes the deputy head to revoke internal appointments and to take
action in their regard, subject to a review being conducted. The Tribunal’s corrective
action ordering the deputy head to review all appointment processes conducted
by the manager involved in this proceeding infringes on the discretionary
authority of the deputy head to review internal appointment processes within his
or her jurisdiction.
[26]
Furthermore,
the PSC also has, under the Act, the exclusive discretionary authority to investigate
any external appointment process:
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66. The Commission may investigate any external
appointment process and, if it is satisfied that the appointment was not made
or proposed to be made on the basis of merit, or that there was an error, an
omission or improper conduct that affected the selection of the person
appointed or proposed for appointment, the Commission may
(a) revoke the appointment
or not make the appointment, as the case may be; and
(b) take any corrective
action that it considers appropriate.
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66. La Commission peut mener une enquête sur tout
processus de nomination externe; si elle est convaincue que la nomination ou
la proposition de nomination n’a pas été fondée sur le mérite ou qu’une
erreur, une omission ou une conduite irrégulière a influé sur le choix de la
personne nommée ou dont la nomination est proposée, la Commission peut :
a)
révoquer la nomination ou ne pas faire la nomination, selon le cas;
b)
prendre les mesures correctives qu’elle estime indiquées.
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[27]
This
authority to investigate conferred under the Act on the PSC cannot be delegated
to a deputy head:
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15. (1) The Commission may authorize a deputy head to exercise or
perform, in relation to his or her organization, in the manner and subject to
any terms and conditions that the Commission directs, any of the powers and
functions of the Commission under this Act, other than its powers under
sections 17, 20 and 22, its power to investigate appointments under sections
66 to 69 and its powers under Part 7.
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15. (1) La Commission peut, selon les modalités et aux conditions
qu’elle fixe, autoriser l’administrateur général à exercer à l’égard de
l’administration dont il est responsable toutes attributions que lui confère
la présente loi, sauf en ce qui concerne les attributions prévues aux
articles 17, 20 et 22, les pouvoirs d’enquête prévus aux articles 66 à 69 et
les attributions prévues à la partie 7.
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[28]
The
Tribunal therefore does not have any jurisdiction with regard to external
appointments. Consequently, no external appointment can be the subject of a
complaint to the Tribunal or an investigation by a deputy head. Consequently,
by ordering the deputy head to carry out reviews on all appointments made by
the manager, the Tribunal is including external appointments, and therefore in
effect is ordering the deputy head to take actions that the Act does not permit
him or her to take. The Tribunal cannot, on the basis of subsection 81(1), act
on an external appointment by ordering a review to take place or by taking any
other corrective action in relation thereto. This is perhaps not what the Tribunal
intended, but this is what is contained in the words it used.
Action II - Suspend
the staffing authority delegated to the manager during this review
[29]
The Act already
provides the following with respect to the authority delegated to the manager:
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24. (2) Where the Commission has authorized a deputy head under
subsection 15(1) to exercise or perform any of the Commission’s powers and
functions, the deputy head may — subject to the Commission’s approval and any
terms and conditions specified under that subsection — authorize another
person to exercise or perform any of those powers or functions, other than
the power to revoke appointments.
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24. (2) L’administrateur général que la Commission a autorisé, en
vertu du paragraphe 15(1), à exercer des attributions peut à son tour
autoriser toute autre personne à les exercer — à l’exception du pouvoir de
révocation — avec l’agrément de la Commission et conformément à
l’autorisation accordée par celle-ci.
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[30]
It is
apparent in subsection 24(2) that the PSC has the exclusive authority to make
appointments and authorize as well as impose conditions on the sub-delegation
of authority to make appointments. The PSC can also remove the delegation just
as it can remove the authority to sub-delegate this power. Consequently, it is
clearly apparent in the Act that the exercise of the appointment authority, its
delegation and their supervision are the responsibility of the PSC and not the Tribunal
and that therefore this second action of the order infringes on the exclusive
jurisdiction of the PSC to authorize the sub-delegation of the power of
appointment and to ensure its supervision.
[31]
The reason
underlying this corrective action is a negative assumption that the manager
will act in a manner contrary to her obligations during future appointment
processes. However, it must be assumed that the manager will act in good faith
with full awareness of her responsibilities and obligations, and that, even
though she allegedly abused her discretionary authority on one occasion, she
will not abuse it in the future. If this were not the case, every new internal
appointment subsequently made by the manager could be the subject of a
complaint to the Tribunal, while every external appointment would be subject to
an investigtion and the supervision authority of the PSC.
Action III – Provide
training to the manager
[32]
The Financial
Administration Act (FAA) already provides as follows:
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12. (1) Subject to paragraphs 11.1(1)(f)
and (g), every deputy head in the core public administration may, with
respect to the portion for which he or she is deputy head,
(a) determine the learning, training and development requirements
of persons employed in the public service and fix the terms on which the
learning, training and development may be carried out;
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12. (1) Sous réserve des alinéas 11.1(1)f)
et g), chaque administrateur général peut, à l’égard du secteur de
l’administration publique centrale dont il est responsable :
a) déterminer les besoins en matière d’apprentissage, de formation
et de perfectionnement des personnes employées dans la fonction publique et
fixer les conditions de mise en œuvre de cet apprentissage, de cette
formation et de ce perfectionnement;
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[33]
The
authority given to the Tribunal by the Act to hear complaints of abuse of
authority related to appointment processes as is the case here does not give it
the right to interfere in the authority conferred by the FAA as stated above. By
means of its decision, the Tribunal can very well make the deputy head aware of
an incident, but it cannot with an order take the place of the PSC, the deputy
head or the employer in determining whether corrective action must be taken
outside of the specific context of the complaint before it.
V. Conclusion
[34]
Since
the applicant is not challenging the Tribunal’s finding on the fact that the
manager abused her discretionary authority, the Court does not have to rule on
this finding.
[35]
However, even
in admitting that there was an abuse of authority in the appointment process that
was the subject of the two complaints, for the reasons already given, the Court
must find that the three corrective actions ordered are not entitled to deference
by this Court;
not only are they ill-founded in fact and in law, and therefore unreasonable, but they also
considerably exceed the jurisdiction of the Tribunal.
[36]
The
corrective actions will therefore be set aside; since the Tribunal recognizes
that its first finding can be a sanction in itself, and there is no appropriate
corrective action other than those already ordered, the Court does not see the
usefulness of returning the complaints to the Tribunal to order what it did not
find appropriate in this case to order by way of other corrective action.
JUDGMENT
FOR
THESE REASONS, THE COURT:
ALLOWS
in part the application for judicial review with costs;
SETS
ASIDE the corrective action ordered by the Public Service Staffing
Tribunal in its decision dated June 20, 2008.
“Maurice E. Lagacé”
Certified
true translation
Janine
Anderson, Translator
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