Dockets: T-2453-14
T-2462-14
Citation:
2015 FC 1416
Ottawa, Ontario, December 23, 2015
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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Docket:
T-2453-14
BETWEEN:
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OLEG SHAKOV
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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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Docket: T-2462-14
BETWEEN:
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OFFICE
OF THE COMMISSIONER FOR FEDERAL JUDICIAL AFFAIRS, MARC GIROUX AND NIKKI
CLEMENHAGEN
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Applicants
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of
a decision of the Public Service Commission [PSC], dated November 3, 2014, to
adopt the conclusions of an Investigative Report and the corrective action
proposed by the Investigations Branch of the PSC regarding the appointment of
Mr. Oleg Shakov as Director of International Programs [IP Director] for the
Office of the Commissioner for Federal Judicial Affairs [FJA].
[2]
The applications by Mr. Shakov, the FJA, Marc
Giroux and Nikki Clemenhagen [collectively, the Applicants] were heard together
pursuant to an order rendered by Justice Mactavish on August 21, 2015.
II.
Background Facts
[3]
The FJA is a federal government department based
in Ottawa. Since 1996, its International Programs Division has coordinated the
involvement of the Canadian judiciary in international exchanges and in
judicial and court reform projects abroad. The Commissioner of the FJA has the
rank and status of a deputy head. The PSC has delegated its appointment and
appointment-related powers to the FJA. Mr. Marc Giroux is the FJA’s Deputy
Commissioner and was Acting Commissioner at the time of the appointment process
at issue in these proceedings. As such, he had the delegated authority to make
appointments within the FJA. Mr. Giroux was responsible for launching the
external non-advertised process no. 11-FJA-ENA-024 [the Appointment Process]
that led to Mr. Shakov’s term appointment in 2011.
[4]
Ms. Nikki Clemenhagen is the FJA’s Director,
Compensation, Pension, Benefits and Human Resources. She held this position at
the time of the Appointment Process and advised Mr. Giroux throughout.
[5]
Mr. Shakov ran an independent consulting
business. As of 1999, he worked on various contracts for the FJA and was
notably their Head of International Projects (what the IP Director position was
called at the time) from 2005 to 2009.
[6]
The FJA does not have any core funding for the
International Programs Division. All funds are obtained exclusively through
outside sources such as the Department of Justice [DOJ] and the now defunct Canadian
International Development Agency [CIDA].
A.
The Appointment Process
[7]
In April 2011, Mr. Marc Giroux approached Mr.
Shakov about replacing the previous IP Director, who had suddenly and
unexpectedly decided to leave. Mr. Shakov initially refused but relented after
Ms. Clemenhagen suggested a one-year appointment. A new position, “OOC-0179”, was subsequently created at the PM-6 group
and level with an “English Essential” language
requirement.
[8]
Mr. Shakov was ultimately appointed to that
position following the Appointment Process. The FJA appointed Mr. Shakov for a
one-year term, from May 16, 2011 to May 18, 2012. It extended his term for a
second year, and in December 2012 appointed him IP Director on an indeterminate
basis.
B.
The Investigation and Report
[9]
The PSC is an independent agency charged with
making appointments to the public service. That power can be delegated, in
which case the PSC retains a supervisory function. In 2013, its Investigations
Branch designated Ms. Marie-Josée Blais to investigate Mr. Shakov’s appointment
after a routine audit of the FJA discovered possible irregularities in the
Appointment Process. Ms. Blais conducted a documentary review, interviewed
several people and issued an Investigation Report on July 11, 2014.
[10]
Ms. Blais concluded that the language
requirement, “English Essential”, had been tailored to fit Mr. Shakov’s profile. Her
finding was based on the following evidence:
- the IP Director
position had been “CCC/CCC” bilingual since
its creation in 1997 and only became English Essential the month Mr.
Shakov was appointed;
- four out of five
positions under the IP Director’s supervision were “BBB/BBB” bilingual;
- management-level
meetings were conducted in English and French;
- the IP Director
was the only Director within the FJA not required to be bilingual;
- Mr. Giroux and
Ms. Clemenhagen knew Mr. Shakov had a limited proficiency in French; and
- Mr. Shakov
requested French lessons, and the language requirement was changed to “BBB/BBB” within a month of Mr. Shakov obtaining
a BBB linguistic profile in French, showing that both the FJA and Mr.
Shakov recognized it was a requirement for the job.
[11]
Ms. Blais also found that none of the reasons
given by the FJA justified conducting a non-advertised external appointment
process. There was evidence that other individuals may have possessed the
requisite “highly specialized” skills, the FJA
did not actually fear losing Mr. Shakov and the “other
reasons” invoked were merely that Mr. Shakov met all the criteria for
the position.
C.
PSC Meetings and Decision
[12]
A first meeting of the PSC Commissioners [MoC]
was held on July 24, 2014. At this meeting, the PSC requested that the
revocation of Mr. Shakov’s appointment be added to proposed corrective
measures, which already included sanctions against Mr. Giroux and Ms.
Clemenhagen. Following this first MoC, the Applicants were given the
opportunity to comment on the proposed corrective action, which they did in
August 2014.
[13]
A second MoC was held on October 31, 2014. On November
3, 2014, the PSC issued its Record of Decision, by which it accepted the
Investigations Branch’s report and recommendations.
[14]
On December 9, 2014, the PSC suspended the
implementation of any corrective action pending the outcome of these
applications for judicial review.
III.
Decision
[15]
The PSC accepted the Investigations Branch’s
report and recommendations. It determined that Mr. Giroux and Ms. Clemenhagen
engaged in improper conduct by tailoring the position’s language requirements
to Mr. Shakov and in choosing a non-advertised process without proper
justification or regard for the value of access found in the FJA’s Non-Advertised
Appointment Processes Policy [FJA Policy]. This improper conduct tainted
the appointment of Mr. Shakov, even though he had no hand in it.
[16]
The PSC mandated the revocation of Mr. Shakov’s
appointment and the suspension of Ms. Clemenhagen and Mr. Giroux’s appointment
authorities until they complete certain courses at the Canada School of Public
Service. It also rescinded the FJA’s delegated authority to reappoint Mr.
Shakov to a different position, reserving the right to make such a decision at
a later time.
IV.
Issues
[17]
These applications raise the following issues:
1.
Was the PSC’s finding of improper conduct in the
appointment of Mr. Shakov reasonable? This issue comprises:
a)
the notion of improper conduct;
b)
the finding that the language requirements were
tailored to Mr. Shakov’s qualifications; and
c)
the justification for undertaking a
non-advertised appointment process.
2.
Was the corrective action proposed by the PSC
reasonable?
3.
Did the PSC breach procedural fairness in
rescinding the FJA’s delegated authority to reappoint Mr. Shakov?
4.
Did the PSC exceed its jurisdiction in ordering
a retroactive revocation?
V.
Standard of Review
[18]
Reasonableness is the appropriate standard of
review for the PSC’s interpretation and application of s. 66 of the Public
Service Employment Act, SC 2003, ss 12, 13 [PSEA] (MacAdam v Canada
(Attorney General), 2014 FC 443 at paras 49-51 [MacAdam]. However,
correctness is the standard of review on questions of procedural fairness (Mabrouk
v Canada (Public Service Commission), 2014 FC 166 at para 31 [Mabrouk]).
VI.
Submissions of the Parties
A.
Mr. Shakov’s Submissions
[19]
With regard to the facts, Mr. Shakov submits
that he took the one-year appointment because he thought he could help get the
program back on foot without losing too much of his consultancy business. There
were no professional advantages for him joining the public service so late in
his career and in fact, his annual income was reduced by half. His language
skills and the details of the Appointment Process were never discussed. Mr.
Shakov states that he accepted a permanent position once the program was back
on track because he did not want the progress he had made to be lost.
[20]
Mr. Shakov argues that the PSC failed to
consider the legal and managerial context in which he was appointed. Mr. Giroux
had the authority to establish the qualifications for the IP Director position
according to current operational requirements (s. 30(2) PSEA). The crisis
situation faced by the FJA justifies his appointment and shows there was no
abuse of authority either in establishing the language profile or in choosing a
non-advertised appointment process.
[21]
There was no need for a bilingual IP Director,
according to Mr. Shakov, because all the employees under his supervision were
Anglophone and because he did not deal directly with the public. The PSC suggests
he benefitted from personal favouritism, yet the investigator never made a
finding of favouritism, and in fact it is Mr. Shakov who did the FJA a favour
by setting aside his successful business. Moreover, other candidates were
invited to apply for the 12-month contract yet none did so.
[22]
As for the choice of process, s. 33 of the PSEA
granted Mr. Giroux managerial discretion to choose either an advertised or a
non-advertised process. An advertised process would have taken at least three
months and any other person would have required additional time for training.
[23]
Mr. Shakov further submits that the PSC failed
to appreciate the significant adverse impacts of its decision on him,
specifically considering: (1) he left his consulting business as a favour to
the FJA; (2) he has since then lost his business contacts; (3) he is the sole
provider for his family; with no immediate job prospects; (4) he is both
qualified and needed for the IP Director position; and (5) the decision affects
his quality of life, reputation, dignity and self-worth. Conversely, no party
would be prejudiced if Mr. Shakov kept his job.
[24]
The proposed retroactive revocation is
not reasonable. This context is very different from that in MacAdam: (1)
the context (urgent or non-urgent); (2) behaviour of the candidates (actively
sought “soft landing” or reluctantly agreed
after being repeatedly approached by the government); (3) the type of
appointment (term or indeterminate); (4) intentions of the hiring managers
(personal favouritism or desire to secure the best candidate); (5) the hiring
managers’ behaviour (attempted to “cover their tracks” or
not); (6) the timelines (newly hired or four
years into appointment); and (7) the witnesses
interviewed (credible or not).
[25]
Mr. Shakov also submits that the PSC failed to
take its own policies and past decisions into account when deciding which
corrective action to take. In other cases the PSC recommended that no action be
taken against the person in the Applicant’s position. For instance, the PSC Policy
on Corrective Action and Revocation and its companion, the Guidance
Series – Corrective Action and Revocation, underscore the importance of
taking into account context, consequences on the parties involved and the
message an appointment sends to other employees.
[26]
Last, the proposed retroactive revocation
exceeds the PSC’s jurisdiction. Section 66 of the PSEA provides for investigations
on external appointment processes. However, the appointment made under that
process no longer exists. Mr. Shakov’s current indeterminate appointment came
from internal process 12-FJA-INA-034.
B.
The FJA’s Submissions
[27]
Regarding the facts, the FJA emphasizes the
critical situation it faced, which called for a new IP Director who could “hit the ground running”: (1) Me Lessard, the IP
Director at the time, had admitted to being incapable of performing the work;
(2) Ms. Natalyia Horodetsky, Me Lessard’s second in command was on sick leave;
(3) the International Programs had very few projects and thus very little
prospective funding, because all their funding comes from their partners; (4)
the International Programs were in jeopardy; and (5) CIDA, their major funding
partner, was not pleased with their work. The FJA also emphasizes the
reputational and operational consequences it would face if it loses Mr. Shakov
and if Mr. Giroux and Ms. Clemenhagen lose their authority to make
appointments.
[28]
The FJA first submits that the PSC
unreasonably interpreted the notion of “improper
conduct” found in s. 66 of the PSEA. The notion is not defined in the
PSEA, and the Public Service Staffing Tribunal [PSST] only says that it
includes bad faith.
[29]
The FJA suggests that PSST jurisprudence on the
notion of “abuse of authority”, found in s. 77
of the PSEA, is an appropriate guideline for what constitutes improper conduct
since abuse of authority also includes bad faith. Lahaie et al v Deputy
Minister of National Defence et al, 2009 PSST 30 [Lahaie],
recognizes that it is not an abuse of authority to use a non-advertised process
where warranted by operational requirements such as urgency. Several PSST cases
state that the PSEA does not express a preference between advertised and
non-advertised processes. Considering the s. 77 PSEA jurisprudence, the FJA
submits that the investigator was unreasonably biased against non-advertised
processes and that she was unwilling or unable to appreciate the urgent
staffing needs, recognized in Lahaie as a valid justification for
non-advertised processes.
[30]
The FJA further submits that the PSC made
unreasonable conclusions with regard to the language requirements. “English Essential” was appropriate given that the
situation was urgent, the appointment was only for a year and the only
employees requiring Mr. Shakov’s supervision at the time were Anglophone.
Subsection 30(2) of the PSEA considers actual needs, not theoretical concerns.
Lastly, the FJA argues that the investigator relied on the Official
Languages Act, RSC, 1985, c 31 (4th Supp.) [OLA] and the Treasury Board’s
Directive on the Linguistic Identification of Positions or Functions, which
were outside her jurisdiction.
[31]
The FJA contends that the Investigation Report
and PSC failed to consider relevant evidence that the circumstances surrounding
process 11-FJA-ENA-024 were exceptional. Mr. Shakov, Ms. Clemenhagen and Mr.
Giroux all explained the urgent circumstances to Ms. Blais, yet this was “completely overlooked” by the investigator.
[32]
The PSC proposes unreasonable corrective
actions, according to the FJA. They are unduly punitive and have no deterrent
effect. The alleged improper conduct had no effect on Mr. Shakov’s appointment
since he was the only qualified candidate. Any concerns about his bilingualism
have been resolved. Moreover, the PSC failed to consider the severe
repercussions the revocation would have on him. As for Mr. Giroux and Ms.
Clemenhagen, whom are both experienced civil servants, neither requires the
entry-level courses the PSC would have them take.
[33]
The FJA challenges the PSC’s authority to revoke
Mr. Shakov’s position. He is appointed on an indeterminate basis, over which
the PSC has no direct jurisdiction.
C.
Respondent’s Submissions
[34]
The Respondent submits that the PSC reasonably concluded
that improper conduct affected the selection of Mr. Shakov. Its interpretation
of “improper conduct” is in line with the
Federal Court’s jurisprudence. Conversely, Mr. Shakov conflates “improper conduct” as found in s. 66 PSEA with “abuse of process”, “personal
favouritism” and “abuse of authority”. As
for the FJA, it cannot rely on PSST jurisprudence dealing with s. 77 of the
PSEA. The s. 77 complaint mechanism specifically considers abuse of authority,
unlike s. 66 of the PSEA investigations into improper conduct.
[35]
It was reasonable to conclude that the language
requirements were tailored to Mr. Shakov’s profile. Subsection 30(2) of the
PSEA establishes that essential qualifications should be based on the work to
be performed. Based on the facts it was reasonable to conclude that
bilingualism is required to perform the work of the IP Director. The
investigator found that at least one Francophone employee was working on a
short-term contract at the time of Mr. Shakov’s appointment.
[36]
The Respondent contends it was reasonable to
conclude that the Appointment Process did not respect the FJA Policy criteria
or fundamental values. The relevant criteria that could have justified Mr.
Shakov’s appointment were: (1) an individual possesses highly specialized
skills and could be “lost” if the appointment is
not made quickly; or (2) other reasons which support a non-advertised process
as being the best staffing option. In the present case, Mr. Shakov was not
looking for work elsewhere and the “other reasons”
given, that he was qualified, is the basic prerequisite for any appointment.
The value of access was not respected, either, since the hiring managers
incorrectly assumed that no other person would have been qualified and/or
interested in the position.
[37]
The proposed corrective action is reasonable according
to the Respondent. MacAdam holds that the seriousness of the offence,
the impact on the affected individuals and the impact on the governmental
department involved do not render a decision unreasonable. The actions against
Mr. Giroux and Ms. Clemenhagen are “clearly designed to
protect and reinforce the integrity of the appointment process” (MacAdam
at para 113). The temporary suspension of their appointment powers will not
paralyze the FJA since the Commissioner can still make appointments. As for the
actions against Mr. Shakov, they are neither punitive nor disciplinary because
they revoke an appointment “tainted by improper conduct”.
This is within the PSC’s jurisdiction since Mr. Shakov’s current internal
appointment would not have been possible but for his initial external
appointment.
[38]
All relevant evidence was considered by the
investigator. Ms. Blais acknowledged the urgent circumstances throughout her
report. Moreover, the PSC did not make its decision based on incomplete
evidence since the full Investigation Report was provided to the Commissioners
a week before the first MoC and the Applicants’ comments on the proposed
corrective action were provided three weeks before the second MoC.
[39]
Lastly, there has been no breach of natural
justice in rescinding the FJA’s ability to use s. 73 of the PSEA. The PSC has
made no decision on s. 73 yet, so it had no obligation to consult the FJA.
VII.
Analysis
A.
The notion of improper conduct
[40]
Section 66 of the PSEA states that the PSC can
take corrective action where “an error, an omission or
improper conduct … affected the selection of the person appointed [in any
external appointment process]”.
[41]
There is no legislative definition of
improper conduct. Recently, Justice Mosley in MacAdam tacitly confirmed
the PSC’s definition of improper conduct: “unsuitable
behaviour, whether by action or inaction, in relation to an appointment process”
(at paras 68 and 77). The British Columbia Court of Appeal approved the
definition of the term ‘improper’ found in the Shorter Oxford English
Dictionary in Paz v Hardouin, [1996] BCJ No 1477, 138 DLR (4th) 292
at para 47: “not in accordance with truth, fact, reason
or rule; not in accord with the circumstances or the end in view; unsuitable;
ill-adapted”. In a case on contract law, it was suggested that the word “improperly” [does not] imply the slightest element of
moral turpitude. The word is used frequently to mean “incorrectly”,
“unsuitably” or “unbecomingly”
(City of Ottawa v Ottawa Electric Railway, [1936] 4 DLR 539, [1936] OR
547).
[42]
I have found it useful to review the case law on
improper conduct as intended in s. 66 of the PSEA, which can be broadly divided
into cases where improper conduct was found and cases where it was explicitly
not found. The publicly available summaries of PSC investigations are also of
use in establishing the meaning of ‘improper conduct’.
(1)
Cases where improper conduct was found
[43]
In MacAdam, three hiring managers,
including one Mr. Dorsey, were found to have behaved in a manner which
constituted improper conduct. The facts included evidence that Mr. Dorsey had
encouraged the external assignment of another senior staff member thus opening
up a position for Mr. MacAdam. There was evidence that he decided to conduct an
external appointment process only upon learning that Mr. MacAdam could not be
appointed internally. Mr. Dorsey also had not based the decision to make the
position “bilingual non-imperative” on any past
experiences or previous failed staffing attempts. Lastly, Mr. Dorsey gave no
justification as to why Mr. MacAdam was the only candidate to meet the
essential qualifications. The Federal Court found that this was a case where
personal favouritism had helped Mr. MacAdam find a “soft
landing” in a secure senior public service position.
[44]
A human resources employee engaged in improper
conduct, in Mabrouk, when he sent emails discussing how to circumvent
hiring procedures adopted under the PSEA. In that case, his intention was to ensure
that Mr. Mabrouk would not be hired. However, his conduct had no influence on
the hiring managers and thus the Federal Court held that it did not affect the
appointment process.
(2)
Cases where no improper conduct was found
[45]
The most recent s. 66 case, Erickson v Canada
(Public Service Commission), 2014 FC 888 [Erickson] was decided on
the basis that the applicant committed an error by appointing an employee
without first ensuring she met all the necessary qualifications. The PSC
investigator had found there was no improper conduct “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 [the appointee’s]
abilities to assist with these staffing requirements based on her work as a
casual employee” (Erikson at para 17). There had apparently been
challenges in staffing bilingual administrative positions.
[46]
In Samatar v Canada (Attorney General),
2012 FC 1263 [Samatar], the Federal Court granted the application for
judicial review of the PSC’s finding of fraud because of a violation of
procedural fairness. The Court indicated that “[t]he
determination of the intent behind the actions taken is therefore an essential
element of the analysis of the evidence. We cannot look only at the material
fact alone” (at para 54). It went on to note how the PSC has previously upheld
the necessity of considering intent when determining whether an action
constitutes improper conduct.
[47]
Tibbs v Canada (Deputy Minister of National
Defence), 2006 PSST 8, is a landmark PSST decision
on the notion of abuse of authority. This case did not involve improper
conduct, but it recognized that the preamble to the PSEA “reinforces one of the key legislative purposes of the PSEA,
namely, that managers should have considerable discretion when it comes to
staffing matters… [t]he definition of merit found in subsection 30(2) of the
PSEA provides managers with considerable discretion to choose the person who
not only meets the essential qualifications, but is the right fit because of
additional asset qualifications, current or future needs, and/or operational
requirements” (para 63).
(3)
PSC Investigations into improper conduct under
section 66
[48]
File number 00-00-49, from 2006, involved an
appointment at CIDA. The PSC found there was improper conduct because the
Statement of Merit Criteria had been established according to the
qualifications of the candidate. There was no link between the qualifications
and written comments justifying the appointment. Moreover, several
qualifications in the Statement of Merit Criteria were not even evaluated. The
PSC ordered that the branch managers attend training but ordered no action
against the appointee as he/she was now working in another organization.
[49]
File number 00-00-02, from 2007, involved an
appointment process where points were awarded based on both an interview and a
reference check. The reference check was not included in support of the marks
allotted to the chosen candidate. This was improper conduct, though it did not
constitute fraud. The PSC ordered a new assessment of the candidate.
[50]
In File number 00-00-48, from 2008, a Selection
Board Chairperson for Correctional Service Canada did not disclose his prior
relationship with the chosen candidate to other members of the Board. The PSC
also took issue with the fact that the Chairperson was involved in developing
the selection criteria and that the other Board members subsequently expressed
unease with the lack of disclosure. The PSC noted that it is necessary to
consider the intent behind actions taken when assessing conduct and that
improper conduct occurs where the proper behaviour was known or understood and
yet was not followed. The PSC ordered that the Chairperson attend courses at
the Canada School of Public Service.
[51]
The Public Service Commission 2012-2013 Annual
Report discusses a case where improper conduct was found: “[t]he HR advisor
tailored the linguistic profile of the position to reflect the candidate’s
language profile, for both the initial appointment and an extension. The sub-delegated
manager signed the letter of offer, knowing that the language profile of the
appointee differed from that of the position.” (Para 4.60 on page 80). The HR advisor was ordered to undertake
training but it appears that no corrective action was ordered against the
appointee.
(4)
Summary
[52]
A review of the case law
demonstrates that improper conduct is found in cases where managerial concerns
were set aside to favour the interests of a particular individual. I have found
none where making a decision based on legitimate, objective managerial
imperatives was found to be improper conduct. What the cases do reveal is that
context is an important consideration in the determination of improper conduct.
B.
The Contextual Approach
[53]
In Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the Supreme Court of Canada emphasized that a discretionary
decision should not be interfered with if it falls within a range of possible
outcomes. This range is flexible, and will widen or narrow depending on the
nature of the question and other circumstances (Maritime Broadcasting System
Ltd v Canadian Media Guild, 2014 FCA 59 at paras 34-35, Stratas J [Maritime
Broadcasting]). It might be considerably constrained by the legislative
standards and legal standards worked out in the jurisprudence (Maritime
Broadcasting at para 58).
[54]
While deference is owed to PSC decisions,
the same is true for the investigator assessing the discretionary powers of an
Acting Commissioner. Thus, when determining whether the FJA engaged in improper
conduct, it is essential to consider the legislative and managerial context.
The Supreme Court has held that a reasonableness review “takes its colour from the context” (Canada
(Minister of Citizenship) v Khosa, 2009 SCC 12 at para 59) and that “[i]t is essentially a contextual inquiry” (Catalyst
Paper Corp v North Cowichan (District), 2012 SCC 2 at para 18).
[55]
In accordance with the delegated authority granted
under s. 15 of the PSEA, the Acting Commissioner has the authority to establish
the qualifications for the IP Director position (s. 30(2) of the PSEA). In my
opinion, under this legislative scheme, the exercise of discretion given to the
Acting Commissioner should not be interfered with unless there is evidence that
the decision-maker exceeded his or her jurisdiction by acting on considerations
unrelated to the interest of the office. As such, it was within his authority
to establish the language profile and choose the appointment process having
regard to any additional qualifications that may be an asset and to “the current operational requirements”.
[56]
The wording of s. 30(2) of the PSEA confirms
that the factual context is an important element in evaluating the exercise of
discretion of managers in staffing matters, which reflects how hiring managers
are well aware of managerial imperatives and urgent staffing needs.
[57]
The choices made by the Acting Commissioner came
within his broad managerial discretion, as intended by Parliament in enacting
the PSEA, considering the situation with which he was faced. His actions were an
entirely reasonable short-term solution immediately available – and indeed it
seems to have been the only possible decision. The PSC’s decision was
unreasonable in that it failed to understand the quandary the FJA was in. When
asked at the hearing what other options would have been available to save the
International Programs Division on the short term, counsel for the Respondent
only suggested that Mr. Shakov’s contract could have been extended. This was
not a feasible option considering Mr. Shakov’s contract had already ended and
that his contract, in any event, was not for work as a Director.
C.
The establishment of the language profile
[58]
As stated above, context is crucial in
determining whether the Acting Commissioner’s actions in appointing Mr. Shakov
for a one-year term constituted improper behaviour.
[59]
The evidence shows that the departure of the
previous Director left the International Programs with no proper management and
jeopardized on-going projects and future financing. It also establishes that
the FJA could not afford to wait for a new Director. This is the context
surrounding the operational requirements at the time when the language profile
was established. The evidence also demonstrates that the appointment of Mr.
Shakov did not benefit from any personal favouritism. To the contrary, Mr.
Shakov accepted this appointment in order to ensure the viability of the
International Programs Division, to the detriment of his financial and
professional interests. He was hired in exceptional circumstances because he
was, on short notice, the only person capable of saving the International
Programs in light of his unique experience in this area. An invitation to apply
for the one-year contract was sent to public servants who had priority to be
hired but no one had the required qualifications.
[60]
Section 36(c)(i) of the Official Languages
Act, RSC 1985, c 31 (4th Supp) states that:
|
36. (1) Every federal institution has
the duty, within the National Capital Region and in any part or region of
Canada, or in any place outside Canada, that is prescribed for the purpose of
paragraph 35(1)(a),
to
[…]
(c) ensure that,
(i) where it is appropriate or necessary
in order to create a work environment that is conducive to the effective use
of both official languages, supervisors are able to communicate in both
official languages with officers and employees of the institution in carrying
out their supervisory responsibility, and
[…]
|
36. (1) Il incombe aux institutions
fédérales, dans la région de la capitale nationale et dans les régions,
secteurs ou lieux désignés au titre de l’alinéa 35(1)a) :
[…]
c) de veiller à ce que, là où il est
indiqué de le faire pour que le milieu de travail soit propice à l’usage
effectif des deux langues officielles, les supérieurs soient aptes à
communiquer avec leurs subordonnés dans celles-ci et à ce que la haute
direction soit en mesure de fonctionner dans ces deux langues.
[…]
|
[61]
There was no legislative requirement that the
position be bilingual because in the short term there was no concern regarding
the ability to supervise employees in the language of their choice. While the
other Director positions in the FJA have an imperative bilingual profile in
order to allow bilingual employees to address their Director in the official
language of their choice, at the time of the Appointment Process none of the International
Programs Division employees required supervision in French. At the hearing,
counsel for the FJA acknowledged that one of the employees was not an
Anglophone but noted that this person held a bilingual position. There is no
indication that this employee ever needed or asked to communicate with Mr.
Shakov in French.
[62]
In sum, the investigator failed to consider the critical
situation in coming to her conclusions. The evidence of the exceptional
circumstances requiring the immediate appointment of a Director in order to
ensure the viability of the International Programs was completely overlooked.
The decision to establish the linguistic profile as English Essential was
designed solely for the best interest of the FJA and not tailored to benefit
Mr. Shakov.
[63]
Should the Acting Commissioner have put the
projects and financing in jeopardy because of a language requirement with no
practical necessity in the immediate future? I do not think so. I am satisfied
that this managerial decision falls within a range of reasonable outcomes and that
the investigator should not have substituted her own opinion of what the FJA
required.
D.
The non-advertised process
[64]
Section 33 of the PSEA gives the Acting
Commissioner discretion to choose between an advertised and a non-advertised
process. The case law recognizes that the circumstances in which an appointment
is being made can be considered by the hiring manager.
[65]
In Lahaie et al v Deputy Minister of National
Defense et al, 2009 PSST 30, the PSST affirmed that “to determine whether the respondent abused its authority in
choosing a non-advertised process, it is necessary to consider the
circumstances under which the appointment was made”.
[66]
In Canada (Deputy Minister of Fisheries and
Oceans) and Cannon, 2008 PSST 21, the tribunal accepted that “there can be circumstances in which a non-advertised process
is chosen for its speed given the pressing operational requirement to staff the
position”.
[67]
The FJA Policy sets out situations in which a
non-advertised process should or may be used. Its stated objective is to “provide a consistent framework and objective criteria for
managers to decide when to use a non-advertised appointment process to conduct
staffing.” The Respondent suggested that the only possible criteria by
which this non-advertised process could be considered are (1) the appointment
of an individual to a position that requires highly specialized skills and the
high-calibre individual could be “lost” if the
appointment is not made quickly; or (2) other reasons that are not listed but
nevertheless support a non-advertised appointment process as being the best
staffing option. At the hearing, counsel for the FJA emphasized the “other reasons” criterion.
[68]
Managers are required to provide a written
rationale to demonstrate how their decision meets the appointment values and criteria.
The rationale written by Mr. Giroux to justify the use of a non-advertised
process referenced the FJA Policy, citing the “other
reasons” and Mr. Shakov’s special skills. Yet it was not sufficient for
the investigator to focus solely on the rationale document – the mission of the
PSC investigator is to gather further evidence. In the case at bar, this
further evidence was Mr. Giroux and Ms. Clemenhagen’s continued insistence on
the critical situation. While this may have only been briefly mentioned in the
rationale, it deserved to be duly considered.
[69]
An advertised process requires more time than a
non-advertised process, time which the FJA did not have. The evidence suggests
that it would take a minimum of three months to conduct an advertised process
and additional time for training. Had the FJA waited that long, it is very possible
that the International Programs Division would have collapsed due to a lack of projects
and funding.
[70]
This was a legitimate reason for the Acting
Commissioner to employ a non-advertised process and it was explained during the
investigation. The Acting Commissioner was in the best position to assess the
departmental context and which process was most appropriate.
[71]
Again, in my opinion, there was nothing improper
or unsuitable in making a decision in the best interests of the FJA and the
survival of the International Programs.
E.
The reasonableness of the proposed corrective
actions
[72]
In light of the previous finding setting aside
the Public Service Commission’s decision, it is not necessary to determine the
reasonableness of the corrective actions. However, I would like to make the
following comments.
[73]
This Court has held that the principles of s. 69
of the PSEA jurisprudence apply to an analysis of corrective action taken
pursuant to s. 66 of the PSEA (MacAdam at para 109). Labour law
principles such as proportionality and progressive discipline do not apply,
such that the revocation of an appointment cannot be found unreasonable on the
basis that it is not one of the most serious of cases (MacAdam at para
112).
[74]
This is not to say this Court will always defer
to the PSC’s choice to revoke an appointment. Justice St-Louis recently stated
in Agnaou v Canada (Attorney General), 2015 FC 523 at para 53, that:
Although corrective action taken by the
Commission is reviewable on a standard of reasonableness, this does not mean
that the Commission has unlimited discretion in that regard. Corrective action
taken by the Commission must respect the spirit of the preamble of the PSEA,
namely, the safeguarding of the principle of merit and of the integrity of the
public service appointment process. Achieving such an objective requires that
corrective action be taken to remedy errors made, such as in this case, that
affected the appointment process in that a priority candidacy was not assessed.
A decision with respect to corrective action would be found to be unreasonable
where the remedy imposed bore no relation to the breach found (Royal Oak
Mines Inc v Canada (Labour Relations Board), [1996] 1 S.C.R. 369 at para 60).
[75]
I am of the opinion that the proposed corrective
actions would have been unreasonable because they do not effectively reinforce
the integrity of the Appointment Process. Revoking Mr. Shakov’s indeterminate
position would be harsh and unfair. MacAdam can be distinguished on many
points. Most importantly, for the purposes of this case, is the temporary
nature of Mr. Shakov’s initial appointment and the time that has elapsed since
May 2011. The effects of the PSC decision – to deprive the FJA of a successful
Director – goes against its very objective of ensuring competent individuals of
the highest merit are appointed. This is not a case of removing an inadequate
Director. Moreover, no deterrent purpose is served as such a decision only
sends the signal that management imperatives should come second to rigid
formalism.
[76]
As for Mr. Giroux and Ms. Clemenhagen, they
acted within their authority in the best interests of the Office of the
Commissioner and would not benefit from basic training on staffing issues.
[77]
In sum, in this case, the PSC has seemingly
applied a “cookie cutter” solution which would
have accomplished nothing under the circumstances. To borrow from Justice
Martineau in Samatar, whose comments apply even though that was a case
of breach of procedural fairness, the best interests of justice were not served
by “the severity of the injustice committed against the
applicant, [and] the intransigence shown by the Commission up until now”
(at para 186).
VIII.
Conclusion
[78]
The evidence in the present case established
that there was no favouritism in the appointment of Mr. Shakov. The best person
available was chosen for a short term in order to quickly resolve an urgent
problem. This was consistent with the spirit of the preamble of the PSEA. The
PSC’s conclusion of “improper conduct” was
unreasonable as it totally disregarded the context in which the decision of the
Acting Commissioner was made.
[79]
In the result, these applications for judicial
review are allowed and the decision of the PSC dated November 3, 2014,
including all corrective actions, is set aside. Costs are fixed at $5,000 in
each file.
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