Docket: T-868-12
Citation: 2013 FC 1170
Ottawa, Ontario, November 18, 2013
PRESENT: The Honourable Mr. Justice Boivin
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Docket:
T-868-12
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BETWEEN:
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PAUL ABI-MANSOUR
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Applicant
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and
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DEPARTMENT OF FOREIGN AFFAIRS
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision made on March 28, 2012 by the Public Service Staffing Tribunal (the “PSST”),
wherein the applicant’s complaints of abuse of authority pursuant to section
77(1)(a) of the Public Service Employment Act, SC 2003, c 22, ss
12, 13 (the “PSEA”) were dismissed. The PSST determined that the
respondent did not abuse its authority either by discriminating against the
applicant in this appointment process, by failing to apply organizational
requirements or by appointing candidates who did not meet the education
requirement.
Factual
background
[2]
A detailed account of the facts is warranted in
this case.
[3]
Mr. Paul Abi-Mansour (the applicant) applied for
an information technology position, the CS-02 position, with the Department of
Foreign Affairs and International Trade (the respondent) in Ottawa, Ontario. The closing date of the appointment process was January 15, 2010 (Applicant’s
Record, tab 3, Exhibit “Tribunal Record” p 4; Respondent’s Record, Volume 1,
Section D, tab 1 at p 2, Job Opportunity Advertisement (JOA)).
[4]
The JOA and the “Statement of Merit Criteria
& Conditions of Employment” (SMC) for the CS-02 position specified that the
candidates had to satisfy, among other qualifications, the following education
requirement (Applicant’s Record, tab 3, Exhibit “Tribunal Record”, p 4; Respondent’s
Record, Volume 1, Section D, tab 2 at p 1; JOA) :
Successful completion
of two years of an acceptable post-secondary educational program in computer
science, information technology, information management or another specialty
relevant to the position to be staffed.
[5]
The job advertisement also instructed candidates
to include a covering letter and to demonstrate, in the cover letter, how they
met the education and experience requirements. It added that résumés could be
used as a secondary source to validate the education and experience described
in the cover letter. It stated that a failure to provide the information in the
requested form would result in the rejection of the application (Applicant’s
Record, tab 3, Exhibit “Tribunal Record”, p 5 JOA; Respondent’s Record, Volume
1, Section D, tab 2 at p 1):
Candidates must
include a covering letter. Candidates must clearly demonstrate IN THEIR COVER
LETTER how they meet the education and experience factors listed in the
essential qualifications and asset qualifications. Candidates must use these
factors as headers and then write one or two paragraphs demonstrating in clear
and precise detail how they meet the qualifications required. Resumes may be
used as a secondary source to validate the education and experience described
in the cover letter. FAILURE TO PROVIDE THIS INFORMATION IN THE REQUESTED
FORMAT WILL RESULT IN YOUR APPLICATION BEING REJECTED.
[Emphasis
in original.]
[6]
The applicant did not mention his education in
his cover letter (Applicant’s Record, tab 3, Exhibit “Tribunal Record” p 10, Applicant
Information – Paul Abi-Mansour; Respondent’s Record, Volume 1, Section D, tab
3, p 3; PSST decision at para 34). In his résumé, he wrote that he had a degree
in applied mathematics, without specifying that the degree included a computer
science option (Applicant’s Record, tab 3, Exhibit “Tribunal Record” p 12,
Applicant Information – Paul Abi-Mansour; Respondent’s Record, Volume 1,
Section D, tab 3, p 3).
[7]
On May 4, 2010, the applicant received an email from
Ms. Geneviève Bégin Martineau, a Senior Human Resources Advisor for the
respondent, informing him that he had been screened out of the appointment
process on the basis that he did not meet the education requirement. The email
also mentioned that the applicant could contact Ms. Jessica Chénier, a Human Resources
Assistant for the respondent, if he wished to informally discuss his
elimination from the appointment process (Respondent’s Record, Volume 1, Section
D, tab 6 at pp 1-3; Email from Geneviève Bégin Martineau, May 4, 2010; Applicant’s
Record, tab 3, Exhibit “Tribunal Record” at pp 76-77):
After a careful
assessment of the information you have provided on your application for the
above-mentioned appointment process, the persons responsible for assessment
have concluded that you do not meet the following merit criteria identified for
screening:
Successful completion
of two years of an acceptable post-secondary educational program in computer
science, information technology, information management or another specialty
relevant to the position to be staffed.
Consequently, you
will not be considered further in this appointment process.
Should you wish to
informally discuss your elimination from this appointment process, please
contact Jessica Chénier, Human Resources Assistant […]
[8]
After being informed of the decision, the
applicant mentioned, in an email sent on May 4, 2010, to Ms. Chénier, that he
had a computer science degree. On May 5, 2010, Ms. Chénier replied to that
email and asked the applicant to submit copies of his educational credentials (Applicant’s
Record, tab 3, Exhibit “Tribunal Record” at p 76, Email from Jessica Chénier,
May 5, 2010):
Good day M.
Abi-Mansour,
Please send us your
education credential proof in order to review your application request.
Do not hesitate to
contact me should you have any questions.
[9]
On May 10, 2010, the applicant submitted the requested
credentials by email (Applicant’s Record, tab 3, Exhibit “Tribunal Record” at p
76, Email from Paul Abi-Mansour, May 5, 2010).
[10]
At the hearing before the PSST, Ms. Chénier
testified that she put the applicant’s education credentials with his application
documents and sent them to Ms. Bégin Martineau, as per her normal procedure.
Ms. Bégin Martineau testified that she never received the applicant’s education
credentials (Applicant’s Record, tab 3, Exhibit 1, PSST’s decision at paras
37-38).
[11]
On September 20 and 21, 2010, Ms. Sue Fata, Manager
of Secure Systems Operations for the respondent who was involved in the
appointment process, wrote to the applicant to follow-up on his request for an
informal discussion to discuss his elimination from the appointment process,
asking him for his availabilities and suggested that the discussion could be
done by email (Applicant’s Record, tab 3, Exhibit “Tribunal Record at p 83, Emails
from Sue Fata, September 20 and 21, 2010; Respondent’s Record, Volume 1,
Section D, tab 7 at p 2).
[12]
On October 13, 2010, the applicant sent an email
to Ms. Fata telling her that he would file a complaint to the PSST and that he
would name her as a personal respondent (Applicant’s Record, tab 3, Exhibit
“Tribunal Record” at p 83, Email from Paul Abi-Mansour, October 13, 2010, Respondent’s
Record, Volume 1, Section D, tab 7 at p 1).
[13]
The applicant testified at the hearing before
the PSST that he spoke on the phone with Ms. Bégin Martineau and that she
told him that he was screened out because of his failure to mention his
education in his cover letter. He also testified that, on November 5, 2010, Ms.
Bégin Martineau left him a voicemail message in which she mentioned that he was
not eliminated because of his covering letter, but because he did not meet the
education requirement. While Ms. Bégin Martineau has no recollection of either
of these phone calls, she testified that their alleged content appeared to be
“accurate” (Applicant’s Record, tab 3, Exhibit “Tribunal Record” at p 84, PSST decision
at para 44). The following transcript was submitted as evidence:
Mon nom c’est Geneviève
Bégin Martineau, je vous téléphone concernant votre élimination de processus
CS-02 au ministère des affaires étrangères. J’ai parlé au gens sur le comité de
sélection et ils m’ont avisé que vous n’avez pas été éliminé au niveau de votre
lettre de présentation mais au niveau de l’éducation tel que mentionné dans
votre lettre sur votre lettre d’élimination. En fait, ils disent que [vous ne] rencontrez
pas le nombre minimal d’éducation qui est de 2 années de programme acceptable
des études postsecondaire terminées avec succès en sciences informatiques,
technologie de l’information, gestion de l’information ou dans un autre domaine
lié au poste à combler. Donc, si vous voulez discuter de cette élimination là,
au niveau de l’éducation, vous pouvez communiquer avec Sergine D’Aoust au …
[14]
The screening-out decision was not reconsidered
by the respondent (Applicant’s Record, tab 3, Exhibit 1, PSST decision at para
6).
[15]
A total of 332 persons, including the applicant,
applied for the CS-02 position. The respondent’s screening report shows that
104 candidates self-identified as members of “designated groups”, within the
meaning of the Employment Equity Act, SC 1995, c 44 (the “EEA”),
and thirty-four (34) individuals self-identified as visible minorities (Respondent’s
Record, Volume 1, Section 1, PSST decision at para 5; Applicant’s Record, tab
3, Exhibit 1).
[16]
Following the assessment process, twenty-nine (29)
candidates were determined to be qualified. On November 30, 2010, three (3) appointments
were made. Nine (9) further appointments were made shortly after (Applicant’s
Record, tab 3, Exhibit 1, PSST decision at para 7).
[17]
The applicant filed a total of nine (9) complaints
under section 77 of the PSEA: three (3) in 2010 (2010-0730, 2010-0733,
2010-0734), and six (6) in 2011 (2011-0118, 2011-0119, 2011-0239, 2011-0362,
2011-0363, 2011-0986). For the purpose of the proceedings, the complaints were
consolidated in accordance with section 8 of the Public Service Staffing
Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116 (Applicant’s
Record, tab 3, Exhibit 1, PSST Decision at para 7).
[18]
The PSST heard the complaints on January 17 and
18, 2012. On March 28, 2012, the PSST dismissed the applicant’s complaints.
Impugned
decision
[19]
In an eleven (11) page decision, the PSST
examined three (3) issues: (i) Did the respondent abuse its authority by
discriminating against the applicant in this appointment process? (ii) Did the
respondent abuse its authority by failing to apply organizational requirements?
(iii) Did the respondent abuse its authority in the application of merit by
appointing candidates who did not meet the education requirement?
(i) Did the
respondent abuse its authority by discriminating against the applicant in this
appointment process?
[20]
On the first issue, the PSST determined that the
applicant had successfully established a prima facie case of
discrimination under section 7 of the Canadian Human Rights Act, RSC 1985, c
H-6 (the “CHRA”) (Applicant’s Record, tab 3, Exhibit 1, PSST decision at paras 19-27), but that the respondent had provided
a reasonable explanation of its appointment process (Respondent’s Record,
Volume 1, Tab 1, PSST decision at paras 28-53).
[21]
The PSST mentioned that section 80 of the PSEA
allows it to interpret the CHRA in order to assess whether a
complaint is substantiated under section 77 of the PSEA. It then
recalled that section 7 of the CHRA provides that it is discriminatory
to directly or indirectly refuse to employ or continue to employ any
individual, or, in the course of employment, to differentiate adversely in
relation to an employee, on a prohibited ground of discrimination. Section 3 of
the CHRA provides the prohibited grounds of discrimination, which
notably include race, and/or national or ethnic origin. The applicant alleged
that the respondent screened him out because it recognized his name as Middle
Eastern and refused to acknowledge his foreign credentials and that the decision
was therefore based on race and/or national or ethnic origin (Applicant’s Record, tab 3, Exhibit 1, PSST decision at para 12).
[22]
The PSST noted that, in order to establish that
the respondent engaged in a discriminatory practice in the course of dealing
with the applicant’s candidacy, the applicant had to establish a prima facie
case of discrimination (Ontario (Human Rights Commission) v Simpsons Sears
Ltd, [1985] 2 S.C.R. 536, [1985] SCJ No 74 [O’Malley]). If a prima
facie case is established, the onus moves to the respondent who has to
provide a reasonable explanation for the practice; such an explanation must not
be considered at the prima facie case step (Lincoln v Bay Ferries Ltd,
2004 FCA 204, at para 22, [2004] FCJ No 941 (QL) [Lincoln]).
Prima facie case of discrimination
[23]
The PSST mentioned that, to establish a prima
facie case, the applicant only had to establish that discrimination was
among the considerations leading to the challenged decision, and not its sole
basis (Holden v Canadian National Railway Company (1991), 14 CHRR D/12,
(FCA) at para 7).
[24]
It then stated that the three (3)-step test to
determine whether a prima facie case of discrimination has been
established in the case of a screening process was the following:
(i)
that the complainant possessed the qualification
at issue that was established for the particular appointment process;
(ii)
that the complainant was eliminated from
consideration on the basis that he did not possess that qualification;
(iii) that a candidate no better qualified, but lacking the distinguishing
feature, which is the basis of the complaint of discrimination, was found to
possess that qualification.
This test is an
adaptation of the one developed in Shakes v Rex Pak Ltd, (1981) 3 CHRR
D/1001.
[25]
The PSST found that the applicant satisfied the
first part of the test. The applicant provided evidence that he obtained a Maîtrise
ès sciences in applied mathematics from the Université Libanaise, a
Baccalaureate in Education from the University of Ottawa and that he was
admitted to a program entitled Diplôme de deuxième cycle en génie logiciel.
The Université Libanaise being a recognized educational institute for the
purpose of the education requirement, the PSST determined that the applicant
possessed the education qualification for the CS-02 position (Applicant’s Record, tab 3, Exhibit 1, PSST decision at paras 21-24).
[26]
The PSST found that the applicant satisfied the
second part of the test, as he was screened out on the basis that he did not
meet the education qualification for the CS-02 position (Applicant’s Record, tab 3, Exhibit 1, PSST decision at para 25).
[27]
The PSST found that the
applicant also satisfied the third part of the test. The applicant addressed
the academic credentials of two (2) appointees, candidates 191 and 279. While
candidate 191 self-identified as a member of a visible minority, candidate 279
did not and the PSST assumed that he was not a member of a visible minority
group. As he was not better qualified than the applicant and did not possess
the distinguishing feature of having a Middle Eastern sounding name, the PSST
concluded that the applicant satisfied the last part of the test (Applicant’s
Record, tab 3, Exhibit 1, PSST decision at para 26).
The respondent’s explanation of its screening process
[28]
Having found that the applicant successfully
established a prima facie case of discrimination, the PSST moved to
examine the respondent’s explanation and found that it was reasonable (Applicant’s Record, tab 3, Exhibit 1, PSST decision at paras 28-53).
[29]
The PSST noted that the JOA instructed candidates to include a covering letter, and to
demonstrate in that covering letter how they met the education and experience
requirements. It added that résumés could be used as a secondary source to
validate the education and experience described in the cover letter. It stated
that a failure to provide the information in the requested form would result in
the rejection of the application (Applicant’s Record, tab 3, Exhibit 1, PSST
decision at paras 28-29).
[30]
The PSST then described the respondent’s
screening process (Applicant’s Record, tab 3, Exhibit
1, PSST decision at paras 30-35,). It cited Mr. Robert Miron, Director of Electronic
Messaging for the respondent, who explained how the teams that were screening
out the applications operated (Respondent’s Record, Volume 1, tab 1, PSST
decision at para 33) :
… If the team found
that the experience or education was missing from the covering letter or if the
candidate’s description did not meet the requirements for education or experience,
the candidate was removed from the process. Mr. Miron stated that 35 candidates
were screened out because they failed to mention their education in their
covering letters. A further 25 candidates were eliminated because the
description of their education did not satisfy the position requirements.
[31]
The PSST noted that the applicant did not
dispute that the instructions were clear, but he decided not to address his
education in his cover letter since that was not his usual practice, and
instead mentioned in his résumé that he had a degree in applied mathematics
without specifying that he had a computer science option. The applicant
believes that the computer science option should have been inferred from his
degree (Applicant’s Record, tab 3, Exhibit 1, PSST
decision at para 34).
[32]
Ms. Fata, who was the employee of the respondent
who screened out the applicant’s candidacy, testified that she did so because
of his failure to mention in his cover letter that he met the education
requirement. At the trial, she identified a handwritten annotation she made
directly on the applicant’s application mentioning that he did not address his
education in his covering letter (Respondent’s Record, Volume 1, Section D, tab
3, Applicant Information – Paul Abi-Mansour; Applicant’s
Record, tab 3, Exhibit “Tribunal Record” pp 10-11, PSST decision at para 35).
[33]
The evidence also shows that Ms. Fata and Ms.
Bégin Martineau reviewed the applicant’s file together and found out that not
only did he fail to mention his education in the cover letter, but he also
failed to mention that his degree in applied mathematics had a computer science
option (Respondent’s Record, Volume 1, Section D, tab 7 at p 1, Email from Sue Fata, October 13, 2010).
[34]
The PSST then provided an account of the various
email exchanges and telephone conversations the applicant had with various
employees of the respondent. Ms. Bégin Martineau testified that she had no
recollection of having telephone conversations with the applicant, but that if
she had spoken to him, she would have initially told him that “he did not meet
the education qualification because his education was not mentioned in his
covering letter” (Respondent’s Record, Volume 1, tab 1, PSST decision at para
44; Applicant’s Record, tab 3, Exhibit 1). Ms. Bégin
Martineau didn’t remember leaving the applicant a voicemail message, but
testified that the content of the transcript that was shown to her at the
hearing seemed “accurate” and that it was likely that she would have told the
applicant that his candidacy was not rejected on the basis of his cover letter,
but because he did not meet the education requirements (Applicant’s Record, tab
3, Exhibit 1, PSST decision at para 44). She testified that she didn’t want to
leave the impression that the content of the cover letter was irrelevant and
wanted to stress that he was eliminated because of his cover letter and the
fact that he did not meet the minimum education requirement (Applicant’s
Record, tab 3, Exhibit 1, PSST decision at paras 43-46).
[35]
The PSST noted that, to support its claim that
the respondent did not discriminate against the applicant in its hiring
process, the respondent provided the following “uncontested” facts:
… At the conclusion
of the process, 29 candidates were determined to be qualified, 16 of whom (55%)
self-identified as visible minorities. Three of the qualified candidates (10.3%
of the qualified candidates) possessed educational credentials from foreign
universities located in Egypt, the West Indies and China. In total, 12 appointments
had been made from the pool of qualified candidates. Six (50%) of the
appointees self-identified as members of visible minorities, three of whom (25%
of the appointees) were born outside Canada: in Somalia, Lebanon and the Philippines. According to data in evidence, the availability of visible minorities
within DFAIT around the time that appointments were being made was 10.3%,
indicating that the results of this appointment process exceeded availability.
The complainant expressed little faith in these numbers, but other than his own
opinion, he led no evidence to challenge them
(Respondent’s Record,
Volume 1, tab 1, PSST decision at para 47).
[36]
The PSST rejected the applicant’s argument that
the fact that he was asked to submit his education credentials gave rise to a
right of having his candidacy reconsidered. His application was rejected
because of his failure to comply with the requirements of the JOA and the SMC
and “he could not circumvent the screening result or oblige the respondent to
conduct a further assessment of his education” (Respondent’s Record, Volume 1,
tab 1, PSST decision at para 51). The PSST added that “[d]eviating from this
process by allowing an exception for the complainant would have been unfair to
other candidates who were screened out for the same reason and may have given
rise to claims of abuse of authority on the basis of unequal treatment” (Respondent’s
Record, Volume 1, tab 1, PSST decision at para 52).
[37]
The PSST concluded that the respondent provided
a complete explanation on the circumstances leading to the rejection of the
applicant’s candidacy, and, on the basis of section 36 of the PSEA, the
respondent set an efficient assessment method. The applicant acknowledged that
the instructions in the JOA and the SMC were clear, but he nevertheless failed
to comply with them (Applicant’s Record, tab 3, Exhibit 1, PSST decision at
para 50).
[38]
The PSST recalled that an applicant is
responsible to demonstrate in his application that he meets all the essential
qualifications (Edwards v Canada (Deputy Minister of Indian and Northern
Affairs), 2011 PSST 10, 2011 LNCPSST 10 [Edwards]; Walker-McTaggart
v Chief Executive Officer of Passport Canada, 2011 PSST 39 (CanLII) [Walker-McTaggart]),
and to ensure that his application documents are complete and in conformity
with the JOA and SMC requirements (Charter v Canada (Deputy Minister of
National Defence), 2007 PSST 48, 2007 LNCPSST 48 [Charter]). An
assessment board has no obligation to follow-up with candidates or raise
inferences when candidates have been told that they must demonstrate their
qualifications in their application (Henry v Canada (Department of Human
Resources and Social Development), 2008 PSST 10, 2008 LNCPSST 10 [Henry]).
[39]
Since it was satisfied that the respondent’s
rejection of the applicant’s candidacy based on his failure to respect the JOA
instructions was not a pretext, the PSST found that the respondent “provided a
more than reasonable explanation to rebut the prima facie case” (Respondent’s
Record, Volume 1, tab 1, PSST decision at para 53).
ii) Did the
respondent abuse its authority by failing to apply organizational requirements?
[40]
The PSST found that the respondent did not err
in choosing not to apply its discretion to consider organizational needs in the
hiring process at hand.
[41]
The PSST explained that the JOA and the SMC used
for this appointment process contained the following passage (Respondent’s
Record, Volume 1, Section D, tab 2 at p 4, JOA, SMC):
Organizational
Needs
Improve
the representation of members of employment equity groups.
It also noted
that, in a section of the JOA entitled “Other Information (Notes)”, the
following passage appeared (Respondent’s Record, Volume 1, Section D, tab 1 at
p 6, JOA):
Achieving a
representative workforce has been identified as an organizational need in the
merit criteria, and may be applied in this appointment process. …
(Emphasis
in original)
[42]
The PSST rejected the applicant’s position that,
once a candidate was found to meet the essential qualifications, the respondent
was obliged to apply employment equity criteria set out in the previous
passages (Respondent’s Record, Volume 1, tab 1, PSST decision at paras 56, 62;
Applicant’s Record, tab 3, Exhibit 1).
[43]
The PSST summarized the testimonies of three (3)
employees of the respondent who were involved in the hiring process. They
mentioned that the organizational need factor comes into play when two (2) candidates
have almost identical qualifications, a situation that very rarely happens, and
that it is a tool that enables a manager to fill any employment equity gap, but
that it doesn’t have to be used in every case (Respondent’s Record, Volume 1, tab
1, PSST decision at paras 57-59; Applicant’s Record, tab 3, Exhibit 1).
[44]
The PSST recalled that paragraph 30(2)(b)
of the PSEA confers discretion on a manager to apply additional asset
qualifications, operational requirements and organizational needs if he
deems it necessary or useful (Glasgow v Canada (Deputy Minister of Public
Works and Government Services), 2008 PSST 7 at para 60, 2008 LNCPSST 7
(CanLII) [Glasgow]; Guimond v Canada (Deputy Minister of National
Defence), 2009 PSST 23 at para 34, 2009 LNCPSST 23 (CanLII) [Guimond])
(Applicant’s Record, tab 3, Exhibit 1, PSST decision at paras 60-61).
[45]
In the case at hand, the PSST found that:
… a manager would
refer to the organizational need only if two candidates were deemed to be
equally suited for an appointment. Moreover, the JOA and SMC indicated clearly
that the organizational need may be applied. The clear meaning is that
they would not necessarily be used. The Tribunal finds no error in an approach
which confirms the discretion of a manager to resort to organizational need
when appropriate.
(Emphasis
in Original)
(Respondent’s Record,
Volume 1, tab 1, PSST decision at para 62; Applicant’s Record, tab 3, Exhibit
1).
(iii) Did the
respondent abuse its authority in the application of merit by appointing
candidates who did not meet the education requirement?
[46]
The PSST found that the applicant did not
establish his allegation that the two (2) candidates he identified – candidate
191 and candidate 279 – failed to meet the education requirement.
[47]
The PSST mentioned that a note in the
qualification standard indicates that the status of the educational institution
– whether it is a “recognized educational institution” or not – determines if
the courses taken by a candidate correspond to “two years in a post-secondary
program” at the institution. When Mr. Paul Hendriks, Deputy Director of Software
Engineering for the respondent, who examined the application of candidate 191,
read in his cover letter that he obtained a degree from CDI College, he was
satisfied that it was an accredited institution. He made a phone call to CDI
College which confirmed that the degree of candidate 191 was the equivalent of
a program of two to two and one-half years duration (Applicant’s Record, tab 3,
Exhibit 1, PSST decision at para 65). The applicant argued that the respondent
assumed that candidate 191 had a degree of duration of two (2) years, contrary
to the note in the qualification standard. He submitted that the respondent
should have produced more evidence of what was said by its employee to CDI College
and that an adverse inference ought to have been drawn (Applicant’s Record, tab
3, Exhibit 1, PSST decision at paras 64-66).
[48]
The PSST noted that candidate 279 mentioned in
his cover letter that he had a bachelor’s degree in business administration
with a concentration in organizational information systems. Mr. Miron, who
examined his application, read the candidate’s résumé, researched the program
he mentioned and found that it had a major information system component. The
applicant argued that the respondent should have screened out candidate 279’s
application on the basis that he did not set out clearly his education in his
covering letter and that the respondent should have produced a transcript to
substantiate its finding (Applicant’s Record, tab 3, Exhibit 1, PSST decision
at paras 67-68).
[49]
The PSST recalled that the onus was on the applicant
to prove his case on the balance of probabilities by providing evidence from
testimonies, facts or documents (Tibbs v Canada (Deputy Minister of National
Defence), 2006 PSST 8, 2007 LNCPSST 8 (CanLII); Broughton v Canada (Deputy
Minister of Public Works and Government Services), 2007 PSST 20 at para 50,
2007 LNCPSST 20 (CanLII)).
[50]
The PSST found that the applicant did not
provide any evidence that the respondent improperly used its authority to
assess education and did not contradict the evidence of the respondent’s
witnesses concerning the two (2) candidates’ qualifications. The fact that the
respondent took additional steps to assess the education of those candidates
only demonstrates that no assumptions were made and that the verification
process was thorough (Applicant’s Record, tab 3, Exhibit 1, PSST decision at
para 70).
Relevant
provisions
[51]
The relevant provisions, in the case at bar, are
referred to in the annexe.
Issues
[52]
The case at hand raises the following issues:
a)
Did the PSST breach procedural fairness?
b)
Was the PSST decision that the respondent
did not abuse its authority by discriminating against the applicant reasonable?
c)
Was the PSST decision that the respondent
did not abuse its authority by failing to apply organizational requirements reasonable?
d)
Was the PSST decision that the respondent did
not abuse its authority by appointing candidates who did not meet the education
requirement reasonable?
Standard of
review
[53]
It is trite law that no deference is owed by the Court
on questions of procedural fairness (Sketchley v Canada (Attorney General),
2005 FCA 404 at para 53, [2006] 3 FCR 392; Canadian Union of Public
Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 SCR
539 [CUPE].
[54]
With respect to the other three (3) issues, the
reasonableness standard applies. In Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 [Dunsmuir], the Supreme Court of Canada held that a
reviewing court does not have to conduct a standard of review analysis where
jurisprudence determined in a satisfactory manner the standard of review
applicable to the question before the court (Dunsmuir, above at para
62). The three (3) questions concerning abuse of authority can qualify as
questions of mixed fact and law. They involve the interpretation of the PSEA
as well as provisions of the CHRA concerning employment discrimination,
that the PSST is explicitly allowed to interpret and that they are closely
related to its function. The jurisprudence has indicated that such decisions by
the PSST are reviewable under the reasonableness standard (Lavigne v Canada
(Deputy Minister of Justice), 2009 FC 684 at paras 42, 45, 46, 50, [2009]
FCJ No 827 (QL) [Lavigne]); Alexander v Canada (Attorney General),
2011 FC 1278 at para 44, [2011] FCJ No 1560 (QL) [Alexander]; Kilbray
v Canada (Attorney General), 2009 FC 390 at para 33, [2009] FCJ No 531 (QL)
[Kilbray]; Kane v Canada (Attorney General), 2011 FCA 19 at para
40, [2011] FCJ No 79 (QL); Jalal v Canada (Minister of Human Resources and
Skills Development), 2013 FC 611 at para 31, [2013] FCJ No 640 (QL); Canada
(Attorney General) v Lahlali, 2012 FC 601 at paras 22-23 [2012] FCJ No 591
(QL) [Lahlali]; Smith v Canada (Attorney General), 2011 FC 1401
at para 21, [2011] FCJ No 1709 (QL)).
[55]
The Court recalls that the role of reviewing courts,
when applying the reasonableness standard, is not to reweigh the evidence that
was before the decision-maker. They have to limit their examination to “[…] the
existence of justification, transparency and intelligibility within the decision-making
process” and should be concerned with determining “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law” (Dunsmuir, above at para 47; Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paras 15-16, [2011] 3 S.C.R. 708 [Newfoundland Nurses]).
Arguments
[56]
Both the applicant and the respondent submitted a myriad of arguments.
Issue a) Breach of procedural fairness
Applicant’s
arguments
[57]
The applicant makes various claims throughout his
memorandum, suggesting that the respondent or the PSST committed breaches of
procedural fairness.
[58]
The applicant argues that the PSST ignored his
contention that the preamble of the “new” PSEA provides managers with
flexibility to strive for more diversity in the public service, and the PSST
should have analyzed the respondent’s exercise of discretion and choice of
assessment method to determine if they respected the values expressed in the
preamble (Applicant’s Record, tab 5, Applicant’s Memorandum at para 35).
[59]
The applicant also submits that the PSST did not
provide him with the opportunity to present his case clearly nor to properly
cross-examine the respondent’s witnesses (Applicant’s Record, tab 5, Applicant’s
Memorandum at para 82)
Respondent’s
arguments
[60]
The respondent disagrees that there was a breach of
procedural fairness. The respondent submits that the applicant had the full
opportunity to present evidence, cross-examine witnesses and make representations
at the hearing and that the only restriction on his capacity to cross-examine
witnesses took the form of an objection to the questioning of Ms. Fata on her
education credentials, which were not relevant (Respondent’s Record, Volume 1,
tab 2, Affidavit of Anisa Coofle at paras 15, 17).
Issue b) Discrimination
Applicant’s
arguments
[61]
The applicant submits that section 36 of the PSEA,
which provides that the Public Service Commission and its delegates have a
discretionary power to use any method they deem appropriate in the assessment
of a candidate’s application, doesn’t apply to the evaluation of a candidate’s
education, since a diploma cannot be assessed by an interview or a performance
appraisal.
[62]
The applicant alleges that the method used by the
respondent in assessing the education of candidates was unfair (Applicant’s
Record, tab 5, Applicant’s Memorandum at paras 37, 38).
[63]
The applicant submits that, since he doesn’t have
access to the premises where the respondent’s employees who testified at the
hearing work, he could not produce contradicting evidence.
[64]
The applicant argues that the real criteria on which
the respondent based its decision were the diplomas of the candidates, not
their cover letter (Applicant’s Record, Applicant’s Memorandum at para 42) and
that the PSST erred in concluding that the “screening by the cover letter”
method, as well as the assessment procedure that involved nine (9) employees
and that lasted three (3) months, were “efficient”, without any evidence of the
respondent’s lack of resources (Applicant’s Record, tab 5, Applicant’s
Memorandum at para 43). The applicant believes that the PSST erred in refusing
to allow a reassessment of his candidacy (Applicant’s Record, tab 5, Applicant’s
Memorandum at para 44).
[65]
Finally, the applicant asserts that the PSST erred and
based part of its decision on misapprehended facts (Applicant’s Record, tab 5, Applicant’s
Memorandum at para 45).
Respondent’s
arguments
[66]
The respondent states that according to Lavigne,
above at para 62, any finding of an abuse of authority requires “more than
error or omission, or even improper conduct”. The threshold to prove abuse of
authority is therefore high and requires that the applicant establishes “that
the decision to appoint the appointee was made in bad faith, influenced by
personal favouritism or otherwise affected by a similar consideration such as
discrimination” (Respondent’s Record, Volume II at pp 159-160, Respondent’s
Memorandum at paras 55-57).
[67]
The respondent submits that, in the case at hand, the
documentary (Respondent’s Record, Volume 1, tab 1, PSST decision at paras
28-50) and testimonial evidence (Respondent’s Record, Volume 1, tab 1, PSST
decision at para 52) showed that clear instructions were given to assessors to
reject all applications that did not include education credentials in the cover
letter (Respondent’s Record, Volume 1, Section D, tab 4 at p1, Email from
Sergine Daoust, March 17, 2010), that the applicant’s application was rejected
because of his failure to respect those instructions and that the applicant was
one of thirty-five (35) candidates who were eliminated because of such a
failure (Respondent’s Record, Volume II at p 161, Respondent’s Memorandum at
para 62). After examining it, the PSST was convinced by that evidence, found
the witnesses credible and determined that the respondent had provided a
reasonable explanation for its screening process (Respondent’s Record, Volume
II at p 163, Respondent’s Memorandum at para 69).
[68]
The respondent also submits that the PSST has
determined a number of times that it is the responsibility of the complainant
to clearly demonstrate that he meets the essential qualifications for the
position (Edwards, above; Walker-McTaggart, above; Henry,
above at para 34).
[69]
The respondent submits that selecting candidates who
attained the highest level of education would amount to ranking candidates
which would be contrary to the principle of “relative merit” (Visca v Canada
(Deputy Minister of Justice), 2007 PSST 24 at para 44, 2007 LNCPSST 24 [Visca])
(Respondent’s Record, Volume II at pp 171-172, Respondent’s Memorandum at para
99).
[70]
The respondent argues that submitting his education
credentials after being informed that he was screened out did not give the
applicant a right to have his application reassessed, because no error was made
by the respondent and his application was screened out on the basis that he did
not list his education in his cover letter. To allow such a reassessment would
be contrary to the PSEA’s purpose to foster fair and transparent
employment practices (Respondent’s Record, Volume II at p 164-165, Respondent’s
Memorandum at paras 72, 74).
Issue c) Failure to apply organizational
requirements
Applicant’s
arguments
[71]
The applicant argues that the PSST should have
concluded that the Employment Equity Act, SC 1995, c 44 (the “EEA”)
imposed on the respondent an obligation of eliminating employment barriers for
designated groups. The respondent should not have a discretionary power to
apply employment equity measures (Applicant’s Record, tab 5, Applicant’s
Memorandum at paras 47-61).
Respondent’s
arguments
[72]
The respondent disagrees and claims that paragraph
30(2)(b) of the PSEA confers discretion on the Commission and its
delegates to apply asset qualifications and organizational needs, but does not
impose an obligation to do so (Glasgow, above at para 60; Guimond,
above at para 34) (Respondent’s Record, Volume II at p 166, Respondent’s
Memorandum at para 79).
[73]
The respondent also submits that it is not the role of
the PSST to enforce the EEA, but that of the Canadian Human Rights
Commission (Lincoln, above at para 70; Brown, above at paras 69-70) (Respondent’s
Record, Volume II at p 166, Respondent’s Memorandum at para 80). Managers can
decide to include employment equity objectives as organizational needs, but
they don’t have to apply this merit criterion if the circumstances don’t
warrant it (Respondent’s Record, Volume III, tab C-26, Public Service
Commission’s Guide to Implementing the Policy on Employment Equity in the
Appointment Process at p 3). According to the respondent, the PSST correctly
found that a manager has the discretion to apply employment equity as an
organizational need when appropriate, and that it was reasonable for the
respondent to consider employment equity only when two (2) candidates were
deemed of equal strength (Respondent’s Record, Volume II at p 167-168, Respondent’s
Memorandum at paras 83-86; PSST decision at paras 57-62).
Issue d) Appointment of candidates who did not meet the
education requirement
Applicant’s
arguments
[74]
The applicant alleges that the PSST erred by rejecting
his motion to obtain evidence regarding the written tests and interviews of the
appointees, which would have been necessary to determine if the appointees met
essential qualifications like experience and knowledge (Applicant’s Record, tab
5, Applicant’s Memorandum at paras 64-69).
[75]
He also contends that the respondent failed to meet his
burden, which was to explain why it appointed a candidate who did not meet the
education criteria. Jack Mah (candidate 191) has a diploma from CDI College. The PSST erred when it accepted the testimony of the respondent’s employee, Mr.
Paul Hendriks, who recognized CDI College as one of the accredited institutions
for the purposes of the appointment process (Applicant’s Record, tab 3, Exhibit
6 at p 85). The applicant claims that the testimony of Mr. Hendriks, who knew
that CDI College was not an accredited institution, amounts to perjured
evidence and submits that the Court should set aside the PSST decision that was
rendered on the basis of this evidence (Agustawestland International Ltd v
Canada (Minister of Public Works and Government Services), 2005 FC 627,
[2005] FCJ No 805 (QL)). Finally, the applicant mentions that the respondent
did not produce any evidence to show that the degree of the candidate was the
equivalent of a two (2) year program (Applicant’s Record, tab 5, Applicant’s
Memorandum at paras 72-80).
Respondent’s
arguments
[76]
The respondent submits that the applicant’s request to
obtain information was dismissed by the PSST because it was too broad and that
a link between the complaint and the information requested was not established.
The request of the applicant was made after the PSST granted his request to
amend his allegations so they could include the allegation that appointees Jack
Mah and Danny Sirois did not meet the educational criteria for the position,
contrary to subsection 30(2) of the PSEA. The applicant subsequently
made a request to access the premises of the respondent and to check all the
documents concerning nine (9) appointees in order to verify if they met the
essential qualifications. The PSST denied the request because the applicant’s
amended allegations were only directed at the satisfaction by two (2) of
the appointees of the education merit criteria (Respondent’s Record, Volume
I, Section C, tab 2, PSST decision Letter dated January 10, 2012; Respondent’s
Record, Volume II at pp 173-175, Respondent’s Memorandum at paras 104-109).
[77]
The respondent also contends that the PSST was correct
when it found that the applicant called no evidence to suggest that the two (2)
appointees failed to meet the education requirement or to contradict the
witnesses of the respondent (Applicant’s Record, tab 3, PSST decision at para
70; Respondent’s Record, Volume II at pp 168-169, Respondent’s Memorandum at
paras 87-88).
Analysis
[78]
The Court recalls that the applicant withdrew at
hearing before this Court his allegation that the PSST acted in bad faith.
[79]
Also, before this Court, the applicant adduced evidence
suggesting that the college where appointee Jack Mah studied was not a
recognized institution in the context of the appointment process for the CS-02
position (Applicant’s Record, tab 3, Exhibit 6). However, this document was not
before the PSST and it shall not be considered by the Court in the context of
this judicial review.
[80]
Based on the evidence on record and the parties’
arguments, the Court is of the view that the PSST did not breach its duty of
fairness. It did not breach its duty of fairness when it upheld the
respondent’s objection to the questioning of Ms. Fata, who was the respondent’s
representative who screened the applicant’s candidacy, on her education
credentials. The PSST had the authority to decide whether the question was
relevant and, looking at the record, the Court does not believe that the PSST
erred in determining that Ms. Fata’s education credentials were not relevant to
decide the applicant’s complaints (Respondent’s Record, Volume 1, tab 2, Affidavit
of Anisa Coofle at paras 15, 17).
[81]
Further, the Court finds no error in the PSST decision
to dismiss the applicant’s request to access the respondent’s premises and
obtain the full application records of nine (9) of the appointees. Because the
allegation of the applicant only concerned the education of the two (2)
appointees, the PSST did not err in dismissing the request because it was too
broad (Respondent’s Record, Volume I, Section C, tab 2, PSST decision letter
dated January 10, 2012).
[82]
The PSST committed no reviewable error in determining
that the respondent did not abuse its authority by discriminating against the
applicant. Section 36 of the PSEA provides the respondent with the
authority to establish any assessment method to determine if candidates meet
the required qualifications. The applicant failed to convince the Court that
the PSST erred in finding that the screening method that was chosen by the
respondent was not discriminatory, unfair or contrary to the objectives of the PSEA.
The instructions in the JOA and the SMC were clear and transparent, as all
candidates were aware that their résumés were only a secondary source of
information and that a failure to mention how the candidates met the
qualifications for the CS-02 position in their cover letter would disqualify
them from the process (Respondent’s Record, Volume 1, Section D, tab 1 at p 2, Job
Opportunity Advertisement (JOA)).
[83]
It is also worthy of note that the respondent in both
his written submissions and at the hearing before the Court admitted that the
instructions included in the JOA and in the SMC were clear and that the
consequences of not complying with them were clearly set out. The applicant
further acknowledged that he did not read them. He did not mention his
education in his cover letter nor did he specify that his degree in applied
mathematics included an option in computer science (Respondent’s Record, Volume
1, Section D, tab 3 at pp 1-2, Applicant Information – Paul Abi-Mansour).
Nonetheless, the applicant argued that the instructions are irrelevant, as they
set out an unfair screening process. On the basis of the evidence, the PSST
committed no reviewable error in concluding that the respondent failed to
provide a reasonable, non-discriminatory explanation of the process.
[84]
The applicant was critical of the respondent’s process
leading to the communication of his disqualification from the appointment
process – more particularly the email from Ms. Geneviève Bégin Martineau sent
on May 4, 2010 (Respondent’s Record, Volume 1, Section D, tab 6 at pp 1-3) and
the email from Ms. Chénier sent on May 5, 2010 asking the applicant to submit
copies of his educational credentials (Applicant’s Record, Tab 3, Exhibit 2, Email
from Jessica Chénier, May 5, 2010). However, it remains that, on the basis of
the record, the issue raised by the applicant is not a material one. It was
open to the PSST to conclude that the applicant was screened out because he
failed to comply with the instructions pertaining to the cover letter. The PSST
heard the testimony of individuals who were involved in the appointment process
and found them credible. It relied on the documentary evidence showing that the
assessors had clearly been instructed to screen out all candidates who failed
to mention how they met the essential qualifications in their cover letter. It
also noted that the assessor who examined the applicant’s candidacy wrote on
his cover letter that the applicant failed to address his education (Applicant’s
Record, tab 3, Exhibit 1, PSST decision at paras 36-46).
[85]
The PSST did not err in finding that the respondent
provided a reasonable explanation of its screening process. The PSST looked at
all the evidence that was submitted, heard the witnesses that were brought
before it and considered the applicable legal criteria. After finding that the
applicant successfully established a prima facie case of discrimination,
the PSST concluded that the respondent reasonably explained its screening
process and that the applicant failed to demonstrate that this explanation was
a pretext (Applicant’s Record, tab 3, Exhibit 1, PSST decision at para 52).
[86]
The PSST’s findings, on the evidence adduced, that the
applicant failed to demonstrate that the respondent abused its authority by
appointing a candidate that allegedly did not meet the education requirement,
was also reasonable. The PSST heard the respondent’s representatives that
assessed the applications that resulted in the two (2) challenged appointments
and did not find any reason to conclude that the appointees failed to meet the
education requirements (Applicant’s Record, tab 3, Exhibit 1, PSST decision at
paras 63-70).
[87]
The applicant’s argument that the respondent was under
an obligation to him because of an alleged obligation to apply asset
qualifications, organizational needs or employment equity objectives, is also
rejected. Subsection 30(2) of the PSEA provides public service hiring
managers with the power to consider, once an applicant has been found to meet
the essential qualifications for a position, other qualifications that might be
assets for their organization and current or future needs that may have been
identified. The language of the subsection, which provides that these
qualifications or needs “may” be considered, makes it clear that the hiring
managers have been granted discretion. The evidence before the PSST also
demonstrates that 50% of the appointments in the said hiring process are self-identified
as visible minorities. These results exceeded the percentage of visible
minorities considered available for the CS-02 position (Respondent’s Record, Volume
1, tab1, PSST decision at para 47).
[88]
Ultimately, in the case at bar, it was the applicant’s
responsibility to clearly demonstrate in his application that he met all the
essential qualifications and that he complied with the instructions. The PSST
decision falls within the range of the possible outcomes defensible in respect
of the facts and the law (Dunsmuir; Newfoundland Nurses).
[89]
For all of these reasons, the Court’s intervention is
not warranted and this application for judicial review will be dismissed. The
Court, in exercising its discretion, has determined that there will be no costs
awarded.
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