Date: 20080708
Docket: T-1636-07
Citation: 2008 FC 841
Ottawa, Ontario, July 8,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
EDITH
BARAGAR
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Edith Baragar from a decision of the
Investigations Branch of the Public Service Commission (Commission). Ms. Baragar
initiated a complaint to the Commission concerning her failure to obtain an
appointment as a Pre-Removal Risk Assessment (PRRA) Officer with the Department
of Citizenship and Immigration following an external appointment process
carried out under the Public Service Employment Act (Act), S.C. 2003 c.
22. Ms. Baragar alleged to the Commission that the process of selection
was carried out in contravention of the requirement under section 30 of the Act
for merit-based appointments. Her initial complaint, following a failed
grievance claiming constructive dismissal, alleged several irregularities in
the selection process including favouritism, bias, discrimination, a failure to
respect the stipulated educational requirements and a failure to apply properly
the principle of merit.
[2]
Upon
receipt of Ms. Baragar’s complaint, the Commission wrote to her and advised
that she would be informed in writing of its decision upon completion of its
review. Ms. Baragar continued to communicate in writing with the Commission
and “reformulated” her concerns in a lengthy written submission. The
Commission then wrote to Ms. Baragar to advise that it would “be reviewing
all the information of this case to determine whether or not there are grounds
to proceed with an investigation”. Ms. Baragar followed this up with a further
detailed written submission which included the following allegations:
The first issue pertains to the matter of
replacing one employee with another employee who is not “better” qualified but
“differently” qualified. If originally the term employee was appointed based
on merit, then, replacing them with another employee either from the same pool
or a different pool without explanation, cause or an employment related related
[sic] reason, renders the term appointment little more (actually even less
than) than an extended probationary period and their release resembles a
dismissal. It allows hiring managers to get rid of employees who are
performing, who they don’t like or who for other reasons, they may want to
replace. Previously, such replacements were justified based on a different
definition and application of merit. Term employees were regularly replaced by
someone else because that other person was found to have been “better’
qualified according to relative merit, the merit principle being applied at
that time. With the new selection and appointment process based on individual
merit, is there a basis for finding one employee more qualified or more
meritous than another who is similarly qualified for the position? This is
the question: Will managers be permitted to hire from a pool, release the
candidate at the end of a short term and hire another candidate to replace them
from the same pool without explanation? Don’t forget that person hired briefly
has no formal recourse. How is this different from failing to extend my term
when I was previously appointed based on merit and found to be fully qualified
in the most recent process? Although previously case law has been definitive
about the employment status of a person whose term has expired, the PSMA may
require the adoption of a new understanding or interpretation for term
employees not unlike the notion of tenancy rights in property law.
The second issue pertains to whether the
decision to disregard one of the merit criteria in this competition was
lawful. S. 30(2)(b) of the PSEA states that the commission must have regard
for the (i) asset qualifications, (ii) operational requirements and
(iii) organizational needs. It is understandable that the employer may use one
or more of the merit criteria to make their decision but to be lawful, should
there not be a reason for not having chosen based on one of the merit
criteria? Often the reason if not articulated, is obvious. In my case, the
asset qualifications were disregarded as was my past performance in the
potision [sic]. There was no reason to disregard the asset qualifications.
The asset qualifications were, I believe, set out as indicators of potential in
the position, that is, they were qualifications that would contribute to
performance in the capacity of decision making. The only logical reason to
revert exclusively to performance in the decision making section of the
examination and personal suitability scores is based on the assumption that as
external candidates, there was no other proper way to assess potential. In my
case that was an error. Not only did I possess asset criteria that others did
not, I had been performing in an exemplary fashion in the position for a year.
To use past performance in the position would not only have been reasonable, to
have ignored both my performance in the position as an indicator of decision
making competency and the fact that I possessed the asset criteria was patently
unreasonable, a misapplication of the act and an abuse of authority.
It was also an error, in the review of my
application, to use personal suitability as an indicator that I could
contribute to a smooth transition as the organization expanded. Retaining me
in the position would not have had any impact on the transition whatsoever.
How could they ignore the fact that I was fully integrated into the position
when looking for people who would cause the least amount of pain as the
organization expanded? I am of the opinion that it is inappropriate to define
the “organizational needs” as they did and patently unreasonable to use “indicators”
of potential or performance when performance in the position can be reviewed as
“proof” of performance.
The requirement to “have regard” to all
the merit criteria implies that the decision maker conduct a qualitative
assessment of the whole of the candidates’ applications. I believe it is an
error in law, in making appointments based on merit, to revert to ranking in
disregard of other criteria and in so doing, focus on minute differences in
performance (relative merit) without regard to more significant differences in
the candidates’ whole applications (individual merit) including acceptable or
exemplary performance in the position. I also believe that the CIC policy manual
suggests that ranking should only be used when all else is found to be equal.
The third issue pertains to process.
After reflecting on the “organizational needs” (which seem to have been defined
after the selection of the pool), I realized that the organizational needs
defined were indistinguishable from the objectives of the selection process.
That is, this job entails only one function: decision making, what was the
objective of the selection process if not to identify competent decision
makers? Then, to select for decision makers based on only one aspect of the
exam, amounts to a revision of the process used to select good decision
makers. Instead of the most qualified individuals being those who possessed
competencies in a number of areas which would contribute to their performance
as decision makers, the most qualified individuals became those who performed
the best in the decision making section of the exam. It appears that they
changed the process (of selecting good decision makers) midstream.
Since the objective of the selection
process cannot be distinguished from the “needs” of the organization, the
exercise resulted in a very simple re-weighting of the essential
qualifications. Instead of choosing the best decision makers as they would
have in a one step process (under the old act), they are choosing the best
decision makers one way and then choosing the best decision makers another way
in the second step.
It is also noteworthy that we were not
advised as to the weight they would accord these key sections of the exam.
Ultimately candidates were ranked based on 2 areas of the selection process:
performance in the decision making section and scores for “personal
suitability”. Should we not have been advised as to the weight these two would
be accorded?
I also find it unreasonable if “personal
suitability” was so important to the organization, that they would deliberately
choose not to use my reference from the organization and instead use a
reference from outside of the organization.
My opinion is that revising the process
used to identify good decision makers, that is using the appointment process to
adjust the findings in the selection process is an abuse of authority and
failing to notify the candidates of the ultimate weight of the factors used to
appoint is a breach of procedural fairness.
By way of this letter I would also like
to advise you that I am currently compiling case law supporting this request as
well as formulating a few other issues I may yet want addressed. Of course I
still want the issue of valid credentials investigated as well as other items
brought up in my original request.
Thank you for your attention to these
matters.
[3]
It
is apparent from the record that Ms. Baragar was afforded an informal
interview with her employer to discuss her concerns but she remained
unsatisfied by the explanations provided. While Ms. Baragar’s complaints
were numerous, the root of her concern appears to relate to the fact that she
was doing the job of a PRRA Officer in an acting capacity and believed that
that fact should have given her some priority over external candidates.
[4]
The
Commission agreed to investigate two matters but it declined to address the
issue of whether the decision to appoint other candidates was carried in
conformity with the principle of merit. The Commission’s letter of July 31,
2007 justified its decision as follows:
[…]
According to the information provided,
you indicated that you participated in the above process and that having
qualified your name was placed in a pool. You believe that your asset
qualifications were disregarded as was your past performance in that same
position. You feel that you should have been advised as to the weight accorded
to key sections of the exam. You indicated that appointments were made whereby
the candidates did not meet the educational requirement of holding a degree
from a recognized university.
We have taken into account the
information provided on the basis of the Commission’s Policy on Considerations
for Investigations Conducted Under the New PSEA by the PSC Relating to External
Appointments, Non-Delegated Internal Appointments and Appointments Involving
Political Influence or Fraud, which now guides the Investigations Branch
when considering whether or not to investigate an appointment process.
For your information, managers are
responsible for selecting the assessment methods or tools that are most
appropriate for the intended process. In the present instance, notwithstanding
the tools utilized, you have successfully been included in the department’s
pool. Deputy Heads and their delegates may appoint from a pool of successful
candidates based either on the organizational and future needs of the
department and/or on some asset qualifications and not on the rank of the
candidates. As a pool is usually created for a period of time, there is still
a possibility that other appointments may be made at a future date from that
pool. Therefore, the Investigations Branch will not conduct an investigation
on this matter.
II. Issues
[5]
(a) Did
the Commission breach its duty of fairness to Ms. Baragar?
(b) Was
the Commission’s decision to investigate only part of Ms. Baragar’s
complaint unreasonable?
III. Analysis
[6]
Ms. Baragar
has raised two matters of procedural fairness which must be reviewed on a
standard of correctness: see Sketchley v. Canada (Attorney
General) 2005
FCA 404, [2006] 3 F.C.R. 392 at paras. 52-55 and Denisov v. Canada (Minister of
Citizenship and Immigration) 2008 FC 550 at para. 10.
[7]
Ms. Baragar
argues that she was entitled to be consulted by the Commission before it
decided not to investigate part of her complaint. She asserts that a process
similar to that used by the Canadian Human Rights Commission ought to have been
employed, allowing for an opportunity for consultation or reply in response to
the presentation of the Commission’s preliminary views or concerns. The
fairness concerns expressed by the Supreme Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration) [1999] 2 S.C.R. 817, 174 D.L.R. (4th)
193, she says, are applicable to her situation and require a more generous
consultation than she received.
[8]
I
do not agree that the Commission breached any duty of fairness by proceeding as
it did. Ms. Baragar was given ample opportunity to make her case and she took
full advantage of that opportunity. The record discloses an ongoing dialogue
between Ms. Baragar and the Commission spanning several weeks in which her
allegations were set out in great detail. I do not agree that the Commission
was required to do more. In particular, it was not required to share its
concerns or set out its preliminary views with Ms. Baragar in advance of
its decision.
[9]
The
content of the duty of procedural fairness is, according to the Baker
decision, eminently variable. It must be assessed in the specific context of
each case (see Baker, para. 21), having regard to the nature of the
decision and the process involved in making it, the particular statutory scheme
under which the decision is taken, the importance of the decision to the
affected party, the reasonable expectations of the proponent and the choice of
procedures actually adopted by the decision-maker (including consideration of
its procedural expertise and its institutional constraints).
[10]
It
should be remembered that in Baker, above, the Court concluded that
there was no obligation to provide an oral hearing or an interview before the
decision was made. The duty of fairness was satisfied in that case by the
opportunity to make written submissions to the decision-maker (see para. 34).
[11]
The
case at bar is certainly not a case which requires a higher standard of
procedural fairness than was observed in Baker, above. While
Ms. Baragar’s complaint was undoubtedly important to her, her interest in
this process was limited to the opportunity to have her complaint investigated.
This would not have included any expectation that the outcome would have been
necessarily favourable to her interests. I would also point out that under
section 66 of the Act the Commission is afforded a discretion to investigate.
Even when an investigation is conducted, the Act does not afford any higher
procedural entitlement than the right to make submissions to the Commission
(see section 72 of the Act). It seems to me to be fairly obvious that a
complainant’s right of participation at the earlier stage – where the
Commission is deciding whether to investigate a complaint - cannot be any
greater than the rights which prevail during an investigation.
[12]
Ms. Baragar also asserts that the Commission unfairly
failed to consider evidence which was relevant to that part of her complaint
that was rejected. In particular, she says that the Commission failed to
examine the employer’s “Justification of Appointments” document which explained
the basis upon which the PRRA Officer appointments were made. I have reviewed
that document and I agree with counsel for the Respondent that its contents do
not support Ms. Baragar’s complaints. Indeed, that document provides fairly
compelling evidence that the impugned appointments did not contravene the
principle of merit but rather were made in conformity with the legislative
mandate for merit-based hiring recognized by section 30 of the Act. In the
result, even if the Commission had taken this document into account (in
addition to the other evidence that was provided) it could not have affected
the outcome.
[13]
Ms. Baragar has also attacked the Commission’s decision to
decline to investigate her complaint in its entirety. This was a decision
falling within the Commission’s statutory discretion. For the purpose of
identifying the appropriate standard of review, I would adopt the following
passage from Justice Carolyn Layden-Stevenson’s decision in Vogan v. Canada
(Attorney General), 2006 FC 129, 296 F.T.R. 28, at para. 29:
Section 7.1 of the
PSEA provides that the Commission may conduct investigations and audits on any
matter within its jurisdiction. It is not mandated to do so. The determination
is one that involves the exercise of discretion. The question is how much
deference is to be afforded to the decision-maker. In Mercer v. Canada (Attorney
General), [2005] F.C.J. No. 2153, 2005 FC 1567, Mr. Justice de
Montigny determined that the applicable standard of review regarding a PSC
decision whether to investigate a complaint is that of reasonableness
simpliciter. I agree with Justice de Montigny's analysis
and his conclusion. […]
[14]
As noted above in these reasons, the decision by the
Commission to investigate a complaint relating to a Public Service appointment
is discretionary. This is reflected in the use of the words “may investigate”
in sections 66 and 67 of the Act. The significance of this type of permissive
language was discussed by Justice Yves de Montigny in the following passage
from Mercer v. Canada (Attorney General), 2005 FC 1567, 283 F.T.R.
266 at para. 14:
It is true that the
Commission [Human Rights Commission] is not obliged to investigate every
complaint that it receives. The case law in this respect is quite clear. For
example, in Patel v. Canada (Public Service Commission), [1996] F.C.J.
No. 127 (QL), Denault J. stated: "With respect to section 7.1, Parliament,
by specifically using the word "may", has conferred upon the
Commission the discretion to conduct investigations within its jurisdiction.
There is no obligation for it to do so" (para. 8)….
[15]
The Commission has developed a set of guidelines that apply
to the exercise of its discretion to investigate which includes consideration
of whether there is available recourse “through other avenues”. It is clear
from the Commission’s decision letter that it took into consideration the fact
that Ms. Baragar had been determined to be qualified for appointment to a PRRA
Officer position and remained in the pool of other qualified candidates
available for selection through to 2009. In my view this was a relevant factor
for the Commission to consider, completely in keeping with its policy
guidelines and consistent with a legitimate concern for its institutional
constraints. This type of consideration was accepted as relevant by the Federal
Court of Appeal in the following passage from Sketchley v. Canada (Attorney General), above, at para. 119:
Finally, the choice of
procedure made by the administrative decision-maker must be considered,
especially when -- as in this case -- the statute is silent on this issue. In Baker,
L'Heureux-Dubé, J. observed that while this factor "is not determinative,
important weight must be given to the choice of procedures made by the agency
itself and its institutional constraints" (para. 27). The Commission
receives many more complaints than it can, for both practical and budgetary
reasons, refer to a tribunal for further inquiry. The Commission's
procedural choices in this regard deserve respect, as it remains the master of
its own procedure, so long as this procedure does not contravene the duty of
fairness. This consideration thus points strongly towards a lesser degree of
procedural protection.
Also see International
Woodworkers of America v. Consolidated-Bathurst Packaging, [1990] 1 S.C.R.
282, 68 D.L.R. (4th) 524 at para. 69.
[16]
What the Commission appears to have done in this case is essentially
to have deferred consideration of part of Ms. Baragar’s complaint until it can be
determined whether she will later be appointed to a PRRA Officer position. So
long as she remains in the pool of qualified candidates, that prospect remains
open. One consequence of such a deferral is, of course, that if Ms. Baragar is
again passed-over for reasons that could raise concerns about the bona fides
of the process, she is free to bring a fresh request for an investigation.
[17]
I have, therefore, concluded that the Commission’s decision
to decline to investigate part of Ms. Baragar’s complaint was reasonable and
should not be disturbed. This application for judicial review is, accordingly,
dismissed with costs payable by Ms. Baragar to the Respondent in the amount of
$750.00 inclusive of disbursements.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed with costs
payable by Ms. Baragar to the Respondent in the amount of $750.00 inclusive of
disbursements.
“ R. L. Barnes ”
Email this Content