Docket: T-674-13
Citation:
2014 FC 888
Ottawa, Ontario, September 17, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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ANNE-MARIE ERICKSON
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Applicant
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and
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THE PUBLIC SERVICE COMMISSION
OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of the Public Service Commission of Canada (PSC), which found that
the Applicant, Anne-Marie Erickson, committed an error that affected the
selection of Ms. Mosseau-Micock to a position in the National Energy Board
(NEB). The key finding of the PSC for the purpose of this application was that
Ms. Erickson made an error which led to the appointment of an employee who was
not qualified for the position she was appointed to.
[2]
Having reviewed the evidence on file and the
parties’ oral and written submissions, I have come to the conclusion that this
application for judicial review ought to be dismissed.
I.
Facts
[3]
In 2009, the Applicant was employed as Assistant
Secretary at the NEB. When the Secretary stepped down in August 2009, the
Applicant was appointed to the position of Secretary in an acting capacity.
Megan Ruholl was then appointed Assistant Secretary.
[4]
It is alleged that during the period of time
that the Applicant was acting, the Chief Operations Officer, Mr. Pradeep Kharé,
maintained all staffing actions that would have otherwise been within the Secretary’s
discretion. It wasn’t until June 2010, when she was actually appointed
Secretary, that the Applicant claims she was given staffing sub-delegation. In
the meantime, the Applicant alleges that she relied on Mr. Kharé and Ms.
Chalifoux, a human resources advisor, for advice and assistance in regard to
all formalities of public service requirements and procedures, and appropriate
staffing procedures and requirements, including documentation to support any
recommended staffing position.
[5]
In October 2009, the Applicant and Ms. Ruholl
attempted to fill a bilingual administrative position within the Office of the
Secretary. According to the Applicant, staffing bilingual administrative
positions had been challenging. A casual position was advertised, and after
candidates were interviewed and assessed against a Statement of Merit Criteria
(SOMC) by the Applicant and Ms. Ruholl, it was recommended that Ms.
Mosseau-Micock be hired. From October 2009 to February 2010, Ms. Mosseau-Micock
worked in that casual position in an apparently satisfactory and competent
manner.
[6]
In December 2009, the NEB still had an immediate
need for someone with Ms. Mosseau-Micock’s qualifications. As Ms.
Mosseau-Micock’s position was due to expire, a decision was allegedly made,
after consultation with Mr. Kharé and Ms. Chalifoux, to extend Ms.
Mosseau-Micock’s position into a 1 year term position, from February 16, 2010
to February 16, 2011.
[7]
The Public Service Employment Act, SC
2003, c 22 (PSEA) provides that casual appointments are limited to 90
days. Before the 90 days had elapsed, the Applicant, Mr. Kharé and Ms.
Chalifoux signed and submitted a Personal Action Request Form (PARF) proposing
to hire Ms. Mosseau-Micock to fill the same position on a one-year term. The
PARF proposed an external non-advertised selection process to fill the
position.
[8]
In order to fulfill the requirements of the PSEA
for an appointment to the public service, the hiring organization must be
satisfied that the proposed candidate meets the essential qualifications of the
position, as identified in the SOMC. In this case, the Applicant has confirmed
that the SOMC for the term position was the same SOMC used to staff the
position on a casual basis in October 2009. Having assessed Ms. Mosseau-Micock
for that casual position and then having worked with her in essentially the
same position, Ms. Erickson was confident that Ms. Mosseau-Micock was qualified
and capable to fill the term position which carried the same duties.
[9]
As part of the decision to place Ms.
Mosseau-Micock into the term position and as part of the decision to use a
non-advertised process, a rationale was provided to the NEB Human Resources Department
from the Office of the Secretary. More specifically, Ms. Ruholl drafted an
email describing the reasons for hiring Ms. Mosseau-Micock into the position in
question. That was forwarded to Ms. Erickson, who approved the rationale and
forwarded it to Ms. Chalifoux on January 8, 2010. Ms. Chalifoux then had the
entire package signed off by Mr. Kharé and a letter of offer was made to Ms.
Mosseau-Micock on February 8, 2010.
[10]
In February 2011, the Applicant was advised that
the PSC was performing an audit of the NEB’s staffing files. The Applicant
alleges that she did assist the PSC in its audit, but was never asked any
questions about Ms. Mosseau-Micock’s appointment. It wasn’t until December 2011
that the Applicant was notified by Ms. Chalifoux that the appointment of Ms.
Mosseau-Micock was to be investigated. The Applicant also alleges that at no
time was she under the impression that her role in the hiring of Ms.
Mosseau-Micock was under scrutiny.
[11]
The investigation into the hiring of Ms.
Mosseau-Micock took place over the period of April 2012 to October 2012. During
the course of the investigation, the Investigator interviewed Ms. Erickson, Ms.
Ruholl, Ms. Chalifoux and Ms. Elder (Ms. Chalifoux’s administrative assistant),
who all played some role in the hiring of Ms. Mosseau-Micock. Following the
interview with the Applicant, a factual report was provided to her and she did
not submit any comments to the Investigator, as the report was fairly accurate
and did not contain any wrongdoing on her part.
[12]
The Investigator then released her Investigation
Report on October 2, 2012, which found that Ms. Erickson, Mr. Kharé and Ms.
Chalifoux had made an error in assessing the qualifications of Ms.
Mosseau-Micock. Ms. Erickson provided extensive comments to the PSC on the
Investigation Report.
[13]
On March 19, 2013, the PSC released the decision,
one part of which was confirming the Investigator’s finding that Ms. Erickson,
Mr. Kharé and Ms. Chalifoux had made an error in the assessment of Ms.
Mosseau-Micock’s qualifications.
II.
The impugned decision
[14]
In the Record of Decision, the PSC concluded
that the Applicant, Ms. Chalifoux and Mr. Kharé committed an error that
affected the selection of Ms. Mosseau-Micock when they failed to establish that
she met all the essential qualifications of the position. As a result, Ms.
Mosseau-Micock’s appointment was not made on the basis of merit. It is also
mentioned, based on the investigation, that Ms. Chalifoux committed an error
that affected the selection of Ms. Mosseau-Micock when she failed to consider a
person with priority entitlement prior to making the appointment.
[15]
In terms of corrective action, it was ordered
that Ms. Chalifoux take two courses on staffing. Because Ms. Erickson does not
have staffing delegation anymore and Mr. Kharé was on leave until his
retirement in July 2013, no corrective action was ordered to address the error
they committed during the appointment process.
[16]
The Record of Decision is based on the
Investigation Report and as a result, it is imperative to summarize the
findings of the Investigator as it is for all intents and purposes, part of the
decision. Following a summary of the evidence and of her interviews, the
Investigator reviewed the policy framework for the language assessment and
provided a detailed layout of the priority administration and assessment. She
then concluded that Ms. Chalifoux’s decision to eliminate another candidate from
further consideration, based on her expired language results, was not
reasonable and constituted an error under section 66 of the PSEA, since
she was not allowed sufficient time to schedule language testing. The
Investigator did not find the Applicant to be responsible for this error,
however, and that matter is not in issue in this proceeding.
[17]
The Investigator also determined that there was
no improper conduct with regard to the appointment of Ms. Mosseau-Micock, as it
was based both on the needs of the organization at the time, namely to manage
temporary staffing needs, and on the assessment of Ms. Mosseau-Micock’s
abilities to assist with these staffing requirements based on her work as a
casual employee.
[18]
Having said that, the Investigator concluded
that there were errors committed that led to Ms. Mosseau-Micock’s selection to
the position. The Investigator noted that many of the documents relating to the
assessment of Ms. Mosseau-Micock were either missing, did not exist, or could
not be clarified. Relying on what information was available, she concluded:
It was unclear from the documents available in
the staffing file whether all essential qualification identified in the
Statement of Merit Criteria were assessed. In fact, Ms. Erickson, by her own
admission, had not reviewed the State of Merit Criteria for Ms.
Mosseau-Micock’s specified period appointment. As such, the only document found
in support of the assessment of Ms. Mosseau-Micock’s qualifications was the
e-mail communication from Ms. Erickson which provided a rationale for her
appointment. Without a record of the assessment that established that each of
the essential qualification were assessed and met, it cannot be said that the
candidate appointed met the qualifications for the position; this constitutes
an error under section 66 of the PSEA. Further, it cannot be said that the
appointment made, as a result of this process, was made in accordance with
merit because the Assessment Board, Ms. Erickson, the HR Advisor, Ms.
Chalifoux, and the delegated Manager, Mr. Kharé did not establish that the
appointed candidate, Ms. Mosseau-Micock, met each of the essential
qualifications of the position.
[19]
The Investigator further concluded that it was
clear from the testimony of the interviewees that errors had been made both as
a result of their own lack of understanding with regard to the staffing process
and the lack of attention to details in order to ensure that staffing requirements
were being met.
III.
Issues
[20]
Three issues arise from this application:
A.
What is the appropriate standard of review?
B.
Was the Public Service Commission’s decision
reasonable?
C.
Was the Applicant treated fairly?
IV.
Analysis
A.
What is the appropriate standard of review?
[21]
I agree with counsel for the Respondent that the
standard of review for decisions of this kind is reasonableness. Section 66 of
the PSEA grants the PSC the discretion to investigate external
appointments and to take corrective action if it is satisfied that the
appointment was not 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. The PSC’s decision, therefore, was primarily a factual finding
arising from an investigation. As such, its decision is entitled to deference.
[22]
To the extent that the PSC’s decision may
involve an interpretation or application of section 66 of the PSEA more
generally, it may be considered a question of mixed fact and law. As the
Supreme Court stated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir] at para 54, “[d]eference will
usually result where a tribunal is interpreting its own statute or statutes
closely connected to its function, with which it will have particular
familiarity”.
[23]
In reviewing the PSC’s decision on a standard of
reasonableness, the Court must not interfere if the decision is transparent,
justifiable and falls within the range of possible, acceptable outcomes that
are defensible in respect of the facts and the law. It is not up to a reviewing
court to substitute its own view of a preferable outcome, nor is it the
function of the reviewing court to reweigh the evidence that was before the decision-maker:
Dunsmuir, at para 47; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59, [2009] 1 S.C.R. 339; Newfoundland and Labrador Nurses’
Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 15,
17, [2011] 3 S.C.R. 708.
[24]
As for the issue of procedural fairness, both
parties submit, and I agree, that it attracts a standard of correctness. When
applying this standard of review, the Court will not show deference to the
decision-maker’s reasoning process, but will undertake its own analysis of the
question: Dunsmuir, at para 50. Of course, the requirements of
procedural fairness will vary with the type of decision-maker and the type of
decision under review: Baker v Canada (Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para 21-28, [1999] SCJ No 39.
B.
Was the Public Service Commission’s decision
reasonable?
[25]
The Applicant submits that the Investigator
erred in her interpretation of section 66 of the PSEA because she
completely ignored the requirement that any error made in a particular
appointment must affect the selection of the person appointed. The
Investigation Report was based on an investigation and conclusions drawn
pursuant to section 66 of the PSEA that there were errors made in
assessing Ms. Mosseau-Micock’s qualifications, without ever determining whether
the error affected the selection of the person appointed.
[26]
The Applicant further contends that the
Investigator erred in placing an onus on the individuals being investigated to
provide evidence that Ms. Mosseau-Micock had the qualifications. Indeed, the
basis for the Investigator’s conclusion that there was an error in assessing
Ms. Mosseau-Micock’s qualifications is based on a lack of evidence of her
qualifications. As the complainant, it was the PSC which bore the initial onus
of having to prove that Ms. Mosseau-Micock had the necessary qualifications.
[27]
Finally, the Applicant argues that it was wrong
for the Investigator to infer from the evidence of a Human Resources Technical
Specialist, who played no role in the hiring of the Applicant, that it was the
practice of the NEB to obtain a Candidate Evaluation Form (CEF) at the time of
Ms. Mosseau-Micock’s appointment. She maintains that her testimony and the
testimony of Ms. Chalifoux are to the effect that no such requirement existed
at the time and that it was sufficient to provide a rationale indicating the
candidate’s qualities. She adds that there was sufficient evidence before the
Investigator that Ms. Mosseau-Micock was qualified for the position, and that
it was not reasonable to assume that Ms. Mosseau-Micock was not qualified for
the position because no CEF was submitted.
[28]
These submissions must be rejected, for the
following reasons. The PSEA provides that the PSC’s mandate is “to appoint, or provide for the appointment of, persons to or
from within the public service in accordance with this Act” and to “conduct investigations and audits in accordance with” the
PSEA (section 11). Section 30 of the PSEA provides that
appointments “shall be made on the basis of merit”.
An appointment is based on merit when “the Commission is
satisfied that the person to be appointed meets the essential qualifications
for the work to be performed, as established by the deputy head, including
official language proficiency” (subsection 30(2)).
[29]
Under section 66 of the PSEA, the PSC has
the discretion to investigate an external appointment process such as the one
that resulted in the appointment of Ms. Mosseau-Micock. Section 66 reads as
follows:
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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
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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 :
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(a) revoke the
appointment or not make the appointment, as the case may be; and
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a) révoquer la
nomination ou ne pas faire la nomination, selon le cas;
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(b) take any
corrective action that it considers appropriate.
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b) prendre les
mesures correctives qu’elle estime indiquées.
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[30]
I do not read section 66 as creating a
requirement that the selection of the person appointed or proposed for appointment
must be affected before corrective action can be taken in all cases. It is
clear that such a requirement exists only when there was an error, an omission
or improper conduct. When the appointment was not made or proposed to be made
on the basis of merit, no such requirement flows from section 66.
[31]
In the case at bar, no one involved in the
selection or appointment of the candidate could demonstrate that Ms.
Mosseau-Micock’s qualifications had been assessed against the essential
qualifications established by the SOMC. The Applicant has admitted she did not
consider the SOMC applicable to the position when she provided a brief written
assessment of the candidate’s qualifications. In those circumstances, it cannot
be said that the Investigator and the PSC erred in concluding that those
involved in the appointment process failed to establish that the candidates had
met all the essential qualifications of the position. Even if we accept that a CEF
was not standard practice at the time to assess a candidate, there should have
been other documentation showing that an evaluation of the merit took place.
Nothing was provided to the Investigator besides a “brief
narrative of recommendation” in an e-mail from Ms. Ruholl to Ms.
Erickson (Applicant’s Record, p. 12). This was clearly not sufficient to assess
the merit of Ms. Mosseau-Micock’s candidacy, and in those circumstances the
Investigator could properly find that the appointment was not made on the basis
of merit.
[32]
Even if I were to accept the Applicant’s argument
that section 66, when properly read, creates a requirement that the selection
of the person appointed or proposed for appointment must be affected before
corrective action can be taken, the decision of the PSC would still be
reasonable. The PSC is entitled to interpret its home statute as long as it
does so plausibly. In the context of the general purpose of the PSEA and
the PSC’s mandate to ensure appointments are made on the basis of merit, it is
reasonable to hold that any process in which merit is not demonstrated affects “the selection of the person appointed or proposed for
appointment”.
[33]
The Applicant submits that, had a proper
assessment been conducted, the same candidate would have been found qualified
and would have been selected. It is even argued that there was a “staggering” amount of evidence before the Investigator
that Ms. Mosseau-Micock was qualified, that evidence being that she had been
hired into a casual position under the exact same SOMC in October 2009, that
she worked in that casual position with the same requirements from October 2009
to January 2010 without complaint or incident, that her term position was
extended until June 2012, and that she performed her role in that position
capably and competently and is now in an indeterminate position with the NEB.
With all due respect, this is far from sufficient to establish that the
appointment of Ms. Mosseau-Micock met the requirement of section 66 of the PSEA.
Even if it could be established a posteriori that Ms. Mosseau-Micock did
indeed perform satisfactorily in her position, it would still not cure a faulty
appointment process. The Investigator did not find that Ms. Mosseau-Micock was
not qualified or did not meet the requirements identified in the SOMC, but that
it cannot be ascertained whether the appointment was made based on merit
because there is no record of the assessment establishing that each of the
essential qualifications were assessed and met.
[34]
As for the argument that the Investigator or the
PSC improperly placed the onus of proof on the individuals being investigated,
it is entirely without merit. The PSC is not the equivalent of a complainant,
and the Investigator was on a fact-finding mission; her role was clearly not
adversarial. As pointed out by the Respondent, the PSC has a statutory mandate
to ensure appointments are made on the basis of merit. It has been given the
discretion, by statute, to investigate appointments to ensure they have been
made in accordance with the PSEA. The PSC was therefore simply following
its mandate to investigate, make findings, and consider corrective actions.
[35]
Finally, the Applicant’s objection that she was
not responsible in any way for the error identified by the PSC is not
reasonable. The Applicant was a team leader who initiated and was involved in a
selection process to fill a position at the NEB. With the help of a human
resources advisor, she chose to use a non-advertised process that resulted in
the appointment of an external candidate to a term position in the public
service. She may not have been responsible for the final assessment of the
candidate’s qualifications because she did not yet have delegated human
resources authority to sign an offer of employment, but she was the one who
initiated both this process and the previous process that resulted in Ms.
Mosseau-Micock being hired on a casual basis. Furthermore, she signed the PARF,
together with Ms. Chalifoux and Mr. Kharé. To that extent, it could be found
that she committed an error that affected the selection of Ms. Mosseau-Micock.
[36]
That being said, the Applicant’s mistake was not
without explanation: she was new in her position as acting Secretary, was not
apparently aware of the need to fill a CEF, and was under pressure because of
the difficulty in staffing bilingual administrative positions. Moreover, her
involvement in the process appears to have been on a much lower scale than that
of Ms. Chalifoux and Mr. Kharé. This does not mean that she bears no
responsibility or that she was not involved in a faulty process.
[37]
It is worth noting that the Investigator made no
finding of improper conduct, and that no corrective action was taken against
Ms. Erickson. It is also important to stress that corrective actions taken
pursuant to section 66 of the PSEA are not the equivalent of disciplinary
measures. In that context, I fail to see how the impugned decision could have
any long-term, detrimental impact on Ms. Erickson’s career at the NEB and elsewhere in the public service.
C.
Was the Applicant treated fairly?
[38]
The Applicant submits that the investigation
into her role was unfair for a number of reasons. First, she was never notified
of the audit of the appointment of Ms. Mosseau-Micock which eventually led to
the investigation, and therefore she had no opportunity to comment on the
finding of “Merit not demonstrated” in the audit.
Second, she was only advised of the investigation almost 12 months after its
initiation, and was given no information and guidance as to how her role was
being perceived or what error she was alleged to have made. She did not receive
notice that she was determined to be part of an assessment board, which is
problematic given the fact that she did not foresee she would be considered
responsible for the assessment as she had no delegated authority for staffing
decisions at the time.
[39]
This submission can be easily dismissed. The record
contains ample evidence that the Investigator followed a deliberate,
transparent process and that the Applicant was provided with numerous
opportunities to make submissions. There was clearly no requirement to involve
the Applicant at the audit stage, and I fail to understand how the referral to
investigation on that basis could “cast the die” for
the way the investigation would proceed.
[40]
At the interview, the Investigator clearly
explained the process she intended to follow and the potential repercussions.
She explained that she would provide any persons affected with a copy of her
factual report so that they could provide comments or submissions. She also
explained that there could be “a negative or adverse
finding regarding any persons involved in the process or matter under
investigation” (Applicant’s Record, p. 21). When she asked whether the
Applicant had any questions, Ms. Erickson said no. Finally, Ms. Erickson
responded to the Investigation Report, setting out the reasons why she felt it
had not accurately captured her responsibilities or actions with respect to Ms.
Mosseau-Micock’s assessment.
[41]
In those circumstances, it is clear that Ms.
Erickson was treated fairly and was given the opportunity to present her
version of the process leading to Ms. Mosseau-Micock’s appointment. The fact
that the PSC accepted the Investigation Report despite Ms. Erickson’s response
obviously does not amount to a breach of natural justice or procedural fairness.
V.
Conclusion
[42]
For all of the foregoing reasons, this
application for judicial review is dismissed, with costs.
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