Date:
20140327
Docket:
T-1907-12
Citation:
2014 FC 294
Ottawa, Ontario,
March 27, 2014
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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EDITH BARAGAR
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The Applicant
seeks judicial review of a Public Service Staffing Tribunal (PSST) decision
which dismissed her complaint that the conduct of the Department of Citizenship
and Immigration Canada (CIC) during the hiring process for a PM-04 position
amounted to an abuse of authority under subparagraph 77(1)(a) of the Public
Service Employment Act, SC
2003, c 22, ss 12, 13 (PSEA).
[2]
The
Applicant presented a deep understanding of the entire process as well as the
appropriate delegated authorities. She argued a number of authorities and legal
principles some of which were applicable to her facts and some that were not.
[3]
She
is passionate about not only her specific situation, but also that the system
is fair, and transparent so that the public would be comfortable with what
happens in the public service hiring process.
[4]
The
Applicant applied for one of two internal positions posted on Job Opportunity
Advertisements (JOA) on Public Service for the position of Pre-Removal Risk
Assessment (PRRA) officer with CIC. One had the linguistic requirement of
“English essential” and the other was “Bilingual imperative”.
[5]
The
JOA stated that the applicants had to demonstrate they met all the listed
essential criteria and failure to do so could result in rejection of their
application. Experience was an essential criteria. In the notes section, in
capital letters, it said the applicants had to submit a cover letter that set
out that they met the criteria. It also said that it was not sufficient to just
state you met the criteria “…the candidate must provide concrete examples that
illustrate how they meet the requirements.” The JOA said the candidates had to
describe in detail when and where they gained experience:
•
administrating
the Immigration and Refugee Protect Act (IRPA) or Citizenship Act;
•
in
making decisions in citizenship and immigration cases or presenting evidence at
Immigration Refugee Board (IRB) hearings.
[6]
The
application process for the PM-04
position was
as follows:
•
Applicants
were required to demonstrate they met the merit criteria in their application
package by giving examples of how in their employment they had met those
criteria;
•
If
they demonstrated by concrete examples they met the criteria, then they were
screened in;
•
If
they were screened in they progressed to the second stage of interviews,
testing, references etc;
•
The
individuals that were successful at the second stage were placed in a pool;
•
From
the pool the hiring manager selects who to hire.
[7]
The
Applicant applied for both positions providing identical information in each
application. Over two hundred other people also applied for the two positions.
[8]
On
October 1, 2009, the Applicant was informed the assessment panel had eliminated
her (screened her out) from the appointment process for failing to meet the
following essential experience criteria:
•
recent
experience administering the IRPA;
•
recent
experience in making decisions in citizenship or immigration cases or
presenting evidence at IRB hearings. Recent experience was defined as at least
12 consecutive months within the last three years.
[9]
The
Applicant argues that the public deserves to have the best qualified candidates
in the positions and not the candidates that follow the Public Service
instructions and procedures. She says the public would be outraged knowing that
people such as herself could be screened out because they did not follow the
instructions set out in the public service posting.
[10]
Her
application included a cover letter and resume. She identified that she did not
administer the IRPA during the three year period of 2004 until December 2007.
The Applicant acknowledged she did not provide the months and the years that
was the 12 month period that she did work as a PRRA officer.
[11]
The
Applicant on October 9, 2009, sought and had an “informal discussion” with
assessment panel member, Barbara Sachs-Syers. The Applicant followed up the
conversation by e-mail in which she provided additional details about her
experience, references, and reiterated how she met the qualifications required.
[12]
Following
the informal discussion, Barbara Sachs-Syers briefed the other assessment panel
members, Jennifer Woodsworth and Anna Miguel, on the informal discussion and provided
her notes to them.
[13]
On
October 15, 2009, the three members reconsidered the Applicant’s resume, cover
letter and notes from the informal discussion, and determined there had been no
errors made in the review and elimination of the Applicant’s application.
[14]
By
e-mail dated October 19, 2009, the Applicant was informed that the assessment
panel had been reconvened to review the Applicant’s file and ultimately
determined that the Applicant had not demonstrated how she met the criteria in
her cover letter. Consequently, the assessment panel’s original determination
was maintained.
[15]
On
November 11, 2010, the Applicant sent a long e-mail response. That email was
responded to on November 17, 2010, by Bonita Hart, and told her that the assessment
panel’s prior decision stands. The Applicant responded on the same day. The Deputy
Minister, Neil Yeates, asked the ADM to look into it. The Director General,
Human Resources responded to the Deputy Minister on December 10, 2010,
confirming what had happened and that the Applicant had now filed complaints
with the PSST. The Director said to have the matter “follow its course through
the tribunal” and this recommendation was agreed by the Deputy Minister.
[16]
Following
the posting of a Notification of Consideration (November 29, 2010) of the
successful candidate, the Applicant submitted a complaint to the PSST under subparagraph
77(1)(a) of the PSEA.
[17]
After
an investigation including a hearing on March 7, 8, 9 and May 7, 2012, with
testimony, cross examination and written submissions, the PSST issued a
decision dated September 11, 2012. In the decision the PSST dismissed the Applicant’s
complaint that the decision of CIC to eliminate the Applicant from the
competition by screening her out and hiring another candidate amounted to an
abuse of authority under subparagraph 77(1)(a) of the PSEA (Baragar v Canada
(Deputy Minister of Citizenship and Immigration), 2012 PSST 0023).
[18]
The
Applicant makes the same abuse of process arguments to this court that she made
to the PSST.
[19]
The
standard of review is reasonableness as it is a question of mixed fact and law (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 54 (Dunsmuir); Canada (Attorney General) v Lahlali, 2012 FC 601).
[20]
I
will dismiss the Judicial Review for the following reasons.
[21]
The Applicant
submits the failure of the assessment panel to consider her e-mail sent
following the informal discussion as part of its subsequent review of the
decision to eliminate her amounts to a breach of procedural fairness. She
submits the PSST erred by not recognizing it as a reviewable error.
[22]
The Applicant
relies on sections 47, 49 of the PSEA as authority that the “informal
discussion” amounts to a two way conversation akin to an administrative review
and requires that her e-mail have been taken into consideration. She relies on Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, as
authority that she was owed a duty of fairness which was breached when the
assessment panel didn’t take her e-mail into consideration.
[23]
The
Applicant submits the law intended informal discussion to allow her to make further
submissions.
[24]
The
PSST concluded that the assessment panel properly exercised its discretion in
refusing to consider the additional information submitted by the Applicant in
an e-mail following the informal discussion. Relying on decisions from the
PSST, they found section 47 of the PSEA, which provides for informal
discussion, does not include an obligation to reassess candidates’
qualifications following those discussions. Consequently, the Applicant was not
entitled to a reassessment of her application which took consideration of the
additional information she submitted after her elimination from the appointment
process.
[25]
For that
reason the PSST concluded that the assessment panel did not err by refusing to
consider the Applicant’s e-mail submitted following the informal discussion.
The PSST found the assessment panel’s decision was consistent with the
applicable law and the evidence establishing that the e-mail contained details
how she met the qualifications that were not included in her original
application.
[26]
The informal
discussion process provided for at section 47 of the PSEA is a discretionary
step that is not part of the assessment process. The PSST found that the
informal discussion is meant to correct errors but does not amount to a second
opportunity for applicants to provide new information for the assessment of
their files. This has been the subject of several PSST decisions, that PSST has
decided that the purpose of informal discussion is not to reassess a candidate
(Rozka v Canada (Deputy Minister of Citizenship and Immigration), 2007
PSST 46).
[27]
The
Applicant’s other argument is that from her cover letter and resume it was
obvious how she administered the IRPA even though she did not give concrete
examples to show she met the essential criteria.
[28]
The
Respondent submitted it was not evident what she did or how she met the
essential criteria from her application as she failed to provide examples of
how she administered the IRPA as was required. As a result the hiring board was
unable to determine if she had met the criteria and screened her out.
[29]
The
Applicant said even though there were over two hundred applicants it was not an
onerous task to go back and determine from the resumes and cover letters to see
if an applicant met the qualifications or was screened out. She argues that the
assessment panel should give reasons as they are an oversight body and the
integrity of the system to the public at large to see merit based.
[30]
The
PSST has found in the past that it is up to the applicants to demonstrate how
they meet the essential qualifications and again not for the board to have to
do further research and investigation (Abi-Mansour v Canada (Department of
Foreign Affairs), 2013 FC 1170; Edwards v Canada
(Deputy Minister of Indian and Northern Affairs), 2011 PSST 10; Henry v Canada (Department of Human Resources and Social
Development), 2008 PSST 10).
[31]
The
PSST
concluded that the assessment panel did not abuse its authority in screening
out the Applicant from the appointment process. The PSST considered the
testimony of Applicant, and Barbara Sachs-Sayer, a member of the three person
assessment panel that reviewed the over 200 applications submitted for the
appointment, including the Applicant’s.
[32]
The
PSST found the assessment panel’s decision and explanation for eliminating the
Applicant were both reasonable because:
•
The
Applicant had failed to provide concrete examples in her resume and cover
letter demonstrating how she met the essential qualifications for the position
as required by the JOA;
•
The
assessment panel was not required to assume that the duties and tasks
undertaken by the Applicant in her previous positions met the essential
criteria of the present appointment.
[33]
Further
the PSST, in a detailed twelve page decision, set out the reasons that they
upheld the assessment panel’s decision that the Applicant was screened out. They
detailed the Applicant’s arguments including her testimony and cross
examination of her experience and the assessment panel’s process and positions.
[34]
The
establishment of the qualifications for appointments within the Public Service
and the assessment panels’ evaluation of candidates against those criteria are
the sole responsibility of the employer (Canada (Attorney General) v
Carty, 2004 FCA 300, at paras 16, 24). It follows then that, the duty of
the employer to justify such discretionary decisions is at the low end of the
spectrum and the assessment panel does not have to give reasons that someone is
screen out. The fact that they will meet with failed candidates for an informal
discussion met the requirements of the duty of fairness.
[35]
Finally,
the Applicant submitted that the public demands that the most meritorious
person be hired for the process. She says the PSST only looked at part of the process
which was the screening out of her application. She submits the PSST needs to
give meaning to all of the checks and balances as they are to be transparent
and informal discussions.
[36]
The
PSST concluded the assessment panel had not abused its authority in appointing
the ultimate candidate, Craig Gloster, to the position. The PSST considered the
Applicant’s allegations that the ultimate candidate lacked an essential
experience requirement. After considering the assessment panel’s testimony of
the procedure followed in assessing the chosen candidate’s application, and the
Applicant’s testimony, the PSST found the Applicant’s allegations of abuse of
authority were not substantiated with evidence.
[37]
This
was a reasonable determination by the PSST.
[38]
In sum, I
cannot conclude that the decision is unreasonable. The PSST applied the correct
test, considered all of the evidence and submissions of the Applicant and
rendered a decision that falls “within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at para 47). There is no
reviewable error.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application is dismissed;
2.
Costs
in the amount of $100.00 awarded to the Respondent payable forthwith.
"Glennys L.
McVeigh"
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