Date:
20140220
Docket:
T-1134-12
Citation:
2014 FC 166
Ottawa, Ontario,
February 20, 2014
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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MONGI MABROUK
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Applicant
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and
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PUBLIC SERVICE COMMISSION OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mongi
Mabrouk (the Applicant) seeks judicial review of a decision dated June 5, 2012
(the “decision”) made by an investigator (the “Investigator”) with the Public
Service Commission (the “Commission”).
[2]
The
decision
followed
an investigation conducted under section 66 of the Public Service Employment
Act, SC
2003, c 22, ss 12, 13, (the “PSEA”) to determine whether an error, omission,
or improper conduct occurred during the course of an appointment process to the
Public Service. The Investigator concluded that no error had been made.
[3]
For
the reasons that follow, I would dismiss the application.
I. Preliminary Issue: Style
of Cause
[4]
The
Applicant has named the Public Service Commission of Canada as the Respondent.
[5]
This
Court has held that the Public Service Commission of Canada is not an eligible Respondent
in applications for judicial review according to Rule 303(1) of the Federal
Courts Rules, SOR/98-106. Accordingly, the Court has applied Rule 303(2) to
amend the named Respondent in the style of cause in such cases to “Canada (Attorney General)” (Gravel v Canada (Attorney General), 2011 FC 832, at para 6).
[6]
The
style of cause is amended and the Respondent will be “Canada (Attorney General)”.
II. Background
[7]
The
Applicant submits the Investigator:
•
made
erroneous findings of fact regarding events that took place during the
recruitment process preceding his appointment; and
•
erred
in the procedure he adopted in investigating the Applicant’s complaints.
A. Recruitment
and Appointment Processes
[8]
The
Applicant is a bilingual professional engineer (P.Eng) trained in Tunisia.
[9]
The
Applicant attended a job fair in November 2009 and provided his resume to Jack
Vandenberg, Director of the Heritage Conservation Directorate (Public Works and
Government Services Canada (PWGSC)) and Gerry Cloutier, Senior Engineering
Advisor.
The Applicant was invited to an interview in January for an
unspecified engineer position.
[10]
Independent of the job
fair, in December 2009, the Applicant applied for an external advertised
appointment with PWGSC for the position of “Engineering Technologist” at the “EG-05”
group
and level (Note, in the materials this position is also referred to as “EG-5”).
[11]
Jack
Vandenberg and Gerry Cloutier, on January 21, 2010, interviewed the Applicant
as promised at the job fair.
[12]
Shortly
thereafter, Gerry
Cloutier spoke with the Applicant to express interest in having him start as an
engineer, subject to:
•
obtaining
security clearance;
•
proof
of professional license;
•
Canadian
citizenship; and
•
reference
checks.
[13]
The
parties disagree about the position that was promised to the Applicant. The Applicant
claims during this telephone call he was offered a position as a permanent
bridge-structural engineer at the “Eng-4” level.
[14]
Internal
correspondence among the hiring managers, both prior to and after the interview
state that the Applicant had the education, experience, and bilingualism
to justify considering him for an “Eng-2 or 3” position.
[15]
In
March 2010, while awaiting verification of security and professional license, the
department communicated to the Applicant its intention to offer him a position
as a Structure Design Engineer at the “Eng-3” group and level (Note, in the
materials, this position is also referred to as Eng-03, or ENG- 3, or ENG-03).
[16]
Disappointed,
the
Applicant wrote an e-mail on March 25, 2010 to the individuals involved in the
hiring process. In the e-mail he expressed disappointment in the proposed offer
and requested that his professional experience as an engineer in Tunisia be recognized for the position.
[17]
The
same day, Gerry Cloutier responded to the Applicant by e-mail, explaining that
an offer of employment had not yet been made, and new graduates were typically
hired at the “Eng-2” and not the “Eng-3” level so his experience was considered.
He asked the Applicant to call him.
[18]
Following
the Applicant’s e-mail, concerns were raised internally among those involved in
the hiring process. Jack Vandenberg and Gerry Cloutier expressed concerns about
the Applicant’s personal suitability, as well as questions about the Applicant’s
claims regarding his professional experience and education. They agreed further
investigation into the Applicant was needed. At this point they involved a human
resources individual, Brian Scime.
[19]
During
the course of this investigation, Brian Scime made a series of comments in
e-mails to Gerry Cloutier regarding the Applicant. Those comments amount to suggestions
of strategies aimed at circumventing the hiring of the Applicant, despite his
qualification into the pool of candidates for the external EG-05 (Engineering
Technologist)
position he applied for, as well as the Eng-03 (Structural Design Engineer)
position he interviewed for following the job fair.
[20]
On
April 1, 2010, the Applicant apologized by e-mail to the same four individuals
and expressed his readiness and willingness to eventually work with the group.
[21]
On
or about April 29, 2010, following a third interview with the Applicant, Jack
Vandenberg and Gerry Cloutier agreed to appoint the Applicant to a one year
term appointment at the Eng-03 (Structure Design Engineer).
[22]
On
June 11, 2010, the Applicant accepted the offer for a one year term position at
the Eng-03 level (Structure Design Engineer), starting June 14, 2010 to June
30, 2011.
[23]
The
Applicant, however, was never notified that he qualified into the pool of
qualified candidates for the Engineering Technologist position at the lower EG-05
level. On May 3, 2010, another candidate from the qualified pool was appointed
to that indeterminate position.
[24]
Towards
the end of his one year term as an ENG 03 (Structure Design Engineer), the Applicant
was informed by letter dated May 2, 2011, that pursuant to the terms of his original
offer, his employment would cease as of June 30, 2011.
[25]
Subsequent
to learning that his term would not be renewed, on May 11, 2011, the Applicant
filed his first request with the Commission to conduct an investigation into
the staffing process for the Eng-03 (Structure Design Engineer) position.
[26]
On
September 30, 2011, following an access to information request through which
the Applicant learned of his qualification into the EG-05 (Engineering
Technologist)
pool, he filed another request with the Commission to investigate the EG-05
selection process.
[27]
On
November 22, 2010, following the outcome of two jurisdiction reviews, the
Investigations Branch of the Commission determined that investigations into the
staffing processes for both the Eng-03(Structure Design Engineer) and EG-05 (Engineering
Technologist)
positions were warranted.
[28]
This
is the decision subject to the present application for judicial review.
III. Issues
[29]
The
issues raised in the present application are:
A.
Were
the Investigator’s five factual determinations underlying its conclusions
reasonable?
B.
Did
the Investigator breach the duty of fairness owed to the Applicant?
IV. Standard
of review
[30]
Judicial
review of factual findings made by investigators during the course of an
investigation conducted under section 66 of the PSEA have been held by this
court to be subject to a standard of reasonableness (Challal v Canada
(Attorney General), 2009 FC 1251, at paras 24-25; Seck v Canada (Attorney
General), 2011 FC 1355, at para 12; Samatar v Canada (Attorney General),
2012 FC 1263, at para 34).
[31]
Questions
involving the fairness of the procedure adopted by investigators in
investigations of appointments by the Commission have been held by the Federal
Court of Appeal and this Court to amount to questions of procedural fairness
and subject to the correctness standard of review (Seck v Canada (Attorney
General), 2012 FCA 314, at para 55; Hughes v Canada (Attorney General),
2009 FC 573, at para 19; Seck v Canada (Attorney General), 2011 FC
1355, at para 11).
V. Analysis
A. Were
the Five Factual Determinations Reasonable?
[32]
The
Investigator’s findings of fact were based on:
•
its
review of the documentary evidence submitted to it;
•
interviews
he conducted with seven individuals involved in the hiring process including
the Applicant; and
•
invitations
he made to all interviewees to make comments on the draft report and then these
comments were incorporated;
[33]
The
Investigator’s factual determinations are:
•
The
Applicant was offered a term contract or determinate Eng-3 (Structure Design Engineer) position on June 11, 2010. He was
not in fact offered indeterminate Eng-3, 4 or 5 positions prior;
•
Any
change in the hiring panel’s intention to offer indeterminate employment was as
a result of a change in budget and nothing else;
•
The
behavior of Brian Scime regarding the Applicant did not affect the outcome of
the appointment process for both the Eng-3 (Structure Design
Engineer)
and EG-5 (Engineering Technologist) positions;
•
The
timing between the initial interview and offer of determinate employment at the
Eng-3 (Structure Design Engineer)level was less than 6 months which is not
unreasonable; and
•
The
failure to advise the Applicant of his qualification in the EG-5 (Engineering
Technologist) appointment process and placement into a pool of qualified
candidates amounts to an error. However the error did not affect the selection
of the person appointed.
[34]
In
my view, each determination is reasonable.
[35]
The
Applicant submits the Investigator erred in failing to find he had been offered
employment at a higher group and level than the Eng-3 (Structure Design
Engineer) position he was ultimately offered. He submits Gerry Cloutier made
oral contracts in January 2010 and March 2010 for positions at the Eng-4 levels
which were breeched by the offer of employment at the Eng-3 level.
[36]
I
disagree. The only evidence the Applicant submits in support of his claim that
he was offered a position at a higher level is the Personnel Security Clearance
form. The form was altered from “ENG-04” to “ENG-2” and dated January 21, 2010,
the day of his first interview. The Personnel Security Clearance form is not is
not an employment offer or contract. It is an auxiliary document and therefore
is not determinative of the position you may eventually be offered.
[37]
By
contrast the documentation in the Certified Tribunal Record is to the effect
that those involved in hiring had only ever considered the Applicant for a
position at the Eng-2 or 3 (Structure Design Engineer) level. In an e-mail
dated December 29, 2009, prior to the Applicant’s interview in January, Gerry Cloutier
told Jack Vandenberg that while the Applicant had applied for the EG-05 (Engineering
Technologist) position, based on his impressions of the Applicant at the job
fair, he thought the Applicant had the education credentials, experience, and
bilingualism to justify considering him for “an ENG 2 or 3 (Structure Design
Engineer)”.
[38]
Based
on the evidence before the Investigator, his finding that the Applicant was not
offered employment at the Eng-4 or 5 level is a reasonable finding.
[39]
The
Applicant submits the Investigator erred in failing to find the change in the Applicant’s
offer from an indeterminate appointment to a one year term appointment. The
Applicant also submits this was erroneous as it amounts to a breach of Treasury
Board Policy. This Policy states that term employment should not be used as a
substitute probationary period for indeterminate staffing.
[40]
I
disagree. The Investigator found that the only offer of employment to the Applicant
was for term employment and he accepted that. There is no evidence in the
record which would support that an intention to hire at the indeterminate level
was ever communicated to the Applicant. Prior to the Applicant’s email of March
25, a number of e-mail exchanges took place between the Applicant and each of
the members of the hiring unit concerning the intention to offer employment but
no correspondence indicated an intention to offer “indeterminate employment” to
the Applicant. Even if they had wanted to offer the Applicant indeterminate
employment they could not as a result of budgetary changes and constrains.
[41]
In
my view, the Investigator’s finding is reasonable.
[42]
The
Commission’s finding that Brian Scime’s conduct did not affect the outcome of
the appointment process is also reasonable in my view.
[43]
Brian
Scime’s e-mails of March 29, 30, and 31 discussing how to circumvent the procedures
adopted under the PSEA, raise questions as to whether the Applicant’s
appointment may have been altered for reasons other than merit.
[44]
The
Investigator concluded that Brian Scime’s behavior amounted to improper conduct
under the PSEA. However, the Investigator also found that Brian Scime’s improper
conduct did not affect the appointment process.
[45]
In
my view this is a reasonable finding.
[46]
At
the time of the Applicant’s e-mail and subsequent responses by those involved
in the hiring process, towards the end of March 2010, the Applicant had not yet
satisfied the conditions required to hire the Applicant. By the date of the Applicant’s
e-mail, those most closely involved in the hiring process, Jack Vandenberg and Gerry
Cloutier, found the Applicant had not yet established that he possessed the essential
qualifications required for making an offer of employment, including proof of
education. This in turn led to the decision by Jack Vandenberg to further
investigate the Applicant’s credentials. This decision was made on March 28,
2010, prior to and independent of Brian Scime’s e-mails of March 29, 30, and 31,
2010.
[47]
Moreover,
the e-mails of Brian Scime can’t be said to have influenced the decision to
hire the Applicant, since the hiring authorities kept an open mind by meeting
the Applicant in April 2010, and ultimately hired him as an Eng 3 (Structure
Design Engineer).
[48]
The
Applicant’s submission that the delay amounted to a reprisal or discrimination
is, in my view, not supported by the facts in the record.
[49]
I
agree with the Investigator’s finding that the time elapsed between the Applicant’s
interview in January and offer in June was reasonable.
[50]
Subsections
30(1) and 30(2) of the PSEA require that appointments to the Public Service be
made based on merit which requires satisfying the Commission that the Applicant
meets the essential qualifications, including official language proficiency.
[51]
The
Applicant needed to provide proof of citizenship, proof of professional
licensing, references, security clearance, and language testing before an offer
could be made. According to the Human Resources checklist, this was done when :
•
language
testing results were obtained on April 22, 2010;
•
security
clearance was obtained after May 3, 2010; and
•
proof
of education was obtained on May 26, 2010.
[52]
In
light of the requirements, any delay between when those conditions were
satisfied, and June 11 2010, when the offer was made, was reasonable.
[53]
The
Applicant submits the Investigator erred in determining that the error made by
Human Resources in failing to inform him of his qualification into the EG-05 (Engineering
Technologist) pool of qualified candidates did not affect the outcome of the
hiring process. He submits had he known of his inclusion into the pool, he
would have accepted the EG-05 position over the person hired.
[54]
The
Applicant’s submission that he would have chosen the EG-05 (Engineering
Technologist) position had he known of his inclusion in the pool is flawed as
it presupposes that he had the authority to determine who among the pool of
eligible candidates would be offered the position. Under section 29 of the PSEA,
the Commission has the exclusive authority at the request of the deputy head to
make appointments to the Public Service. The Commission, and not the Applicant,
has the authority to select the candidate from among the qualified pool. The
deputy head did not select him from the pool.
[55]
The
Investigator found the error in failing to inform the candidate of his
qualification into the EG-05 pool was not determinative to the outcome of the
EG-05 appointment of another qualified candidate. The Investigator found that
there was only one position available at the EG-05 group and level. At the time
of appointment the deputy head, Jack Vandenberg, was aware that the Applicant
and the other candidate were in the pool. Under the PSEA, Jack Vandenberg had
discretionary authority to choose who among the two qualified candidates, would
be offered the position and offered it to the other candidate in the pool. The Investigator
found Jack Vandenberg was reasonable in the exercise of his discretion to
choose the candidate he did.
[56]
Consequently,
it was reasonable for the Investigator to determine that although it was an
error to failto inform the Applicant of his qualification into the pool, it did
not affect the outcome.
B. Did the Investigator Breach the
Duty of Fairness Owed to the Applicant?
[57]
The
Applicant submits the Investigator beached the duty of fairness by:
•
denying
him the opportunity during the investigation to submit audio evidence and cross
examine members of the Commission involved in hiring; and
•
refusing
to consider his comments on the draft report or his audio evidence.
[58]
I
disagree with each of the Applicant’s submissions.
[59]
The
Supreme Court in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 (Baker), has held that the duty of procedural fairness
is flexible and variable, influenced by, among other, the nature of
the statutory scheme and the choices of procedure made by the agency
itself (Baker, at paras 22-27). Thus the degree to which procedural
fairness should be accorded in a given case must take into account both the
legislated decision making regime in place and the facts of the case.
[60]
The
Federal Court of Appeal has held that the Commission should be afforded
considerable latitude on judicial review of the procedure adopted by a
Commission in the way it conducts its investigation commissions. The latitude
is needed owing to their need to balance the interests of complainants and the
demands of administrative efficacy (Tahmourpour v Canada (Solicitor General), 2005 FCA 113, at para 39).
[61]
This
rule has been applied when addressing issues of the duty of fairness in hiring
decision investigations carried out by the Public Service Commission (Ayangma
v Canada (Attorney General), 2010 FC 1194, at paras 95-96).
[62]
The
statutory scheme applicable to Commission investigations does not require an
investigator to accept audio evidence or require witnesses to be
cross-examined. Section 70 of the PSEA imposes a duty on the Commission to
carry out investigations as informally and expeditiously as possible, and
grants investigators the powers of a commissioner under Part II of the Inquiries
Act, RSC 1985, c I-11. Those powers are set out in section 7 to 9 of that Act
and give broad discretionary powers to commissioners in the conduct of
investigations.
[63]
The
Investigator conducted interviews with each party and completed an independent
and impartial review of the files. He documented his methodology and
information gathered during the course of the investigation. Each factual
determination is justified by references to the record or to Public Service
policies.
[64]
I
do not accept the Applicant’s submission that the Investigator did not take the
Applicant’s comments on the draft factual report under consideration. The Investigator
specifically mentions at point 5 that the report was sent to the Applicant and
his comments were received. The Investigator referenced the comments received
at points 33, 44, 54 and 69 of the report.
[65]
Consequently,
I would dismiss the application for judicial review.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
“Public Service Commission of Canada” be removed as the Respondent and be
replaced by “Canada (Attorney General)”;
2.
The
application for judicial review is dismissed,
3.
Costs
in the amount of $250.00 are payable forthwith by the Applicant.
"Glennys L.
McVeigh"
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