Docket: T-825-13
Citation: 2015 FC 523
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, April 22, 2015
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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YACINE AGNAOU
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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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JUDGMENT AND REASONS
[1]
Yacine Agnaou is seeking judicial review of the
decision of the Public Service Commission of Canada [the Commission] dated
April 16, 2013, which, on the one hand accepted in part the Investigation
Report finding that errors had been made in an external appointment process and
on the other, as a corrective action, ordered the managers involved to take the
Canada School of Public Service’s PO15 Overview of the Workforce Adjustment
Directive course.
[2]
Having read the parties’ records and having
considered their written and oral submissions, the application for judicial
review will be allowed for the reasons outlined below.
I.
Background
[3]
In 2009, Mr. Agnaou, who was employed at the
time by the Public Prosecution Service of Canada [PPSC], left his position for
educational leave.
[4]
On November 1, 2010, the position held by Mr.
Agnaou was staffed for an indeterminate period. From November 1, 2010, until
January 3, 2013, Mr. Agnaou had a priority entitlement pursuant to section 41
of the Public Service Employment Act, SC 2003, c 22, [PSEA].
[5]
In September 2011, the Office of the Registrar
of the Supreme Court of Canada [ORSCC] conducted simultaneous appointment
processes in order to fill two legal advisor positions.
[6]
Thus, following receipt of the Commission’s
authorization, the ORSCC advertised two appointment processes, one internal
(11-SUC-IA-1221) and the other external (11-SUC-EA-1181).
[7]
Mr. Agnaou was identified as having a priority
entitlement in the internal process. However, in October 2011, this internal
process was cancelled due to the identification of a situation justifying the
use of the staffing mechanism set out in section 43 of the PSEA, and the
assessment of Mr. Agnaou’s priority candidacy was therefore never completed. The
position was ultimately filled by Geneviève Domey, a person who was already in
the employ of the Supreme Court of Canada [SCC].
[8]
In addition, Mr. Agnaou was not identified as
having a priority entitlement in the external process, and on November 3, 2011,
Renée Thériault received an offer of employment for the position of legal
advisor in the external appointment process (11-SUC-EA-1181).
[9]
In the fall of 2011, Mr. Agnaou expressed his
displeasure at the treatment of his candidacy to the ORSCC, and was not
satisfied by the comments he received.
[10]
Thus, on March 4, 2012, Mr. Agnaou filed a
complaint with the Commission alleging that the ORSCC had breached his priority
entitlement.
[11]
On June 29, 2012, Denis Bilodeau, Vice President
of the Investigations Branch [IB] of the Commission, notified Mr. Agnaou by
letter that the Commission had accepted the reasons provided by the ORSCC for
having cancelled the internal appointment process through the use of section 43
de la PSEA, but that an investigation would be conducted regarding the external
appointment process. Mr. Agnaou is not challenging the Commission’s decision
not to investigate the internal appointment process.
[12]
The first interviews of the investigation into
the external appointment process, conducted by Errico Urbani [the
investigator], were held in September 2012. Among others, Mr. Urbani met with
Karen McCallum, Human Resources Advisor, Human Resources Branch, SCC, and Ms.
Julie Terrien, Senior Counsel, Law Branch, SCC and delegated hiring manager.
[13]
Essentially, Ms. McCallum indicated to Mr.
Urbani that the failure to consider Mr. Agnaou’s candidacy in the external
appointment process was simply an oversight. For her part, Ms. Terrien indicated
to Mr. Urbani that it was not an oversight, but a factor of timing, given that
discussions with Ms. Thériault were already underway.
[14]
During the investigation, Anne-Marie Larivière,
Director of the Human Resources Branch at the SCC offered to review Mr. Agnaou’s
candidacy, but he refused, having lost all confidence in the process.
[15]
On October 7, 2012, Mr. Agnaou emailed the
investigator, informing him that his priority entitlement was due to expire on
January 3, 2013.
[16]
On October 23, 2012, the investigator sent the “Factual Report” to Mr. Agnaou and to the other persons
concerned, and on October 30, 2012, Mr. Agnaou submitted his comments in
response to the Factual Report.
[17]
In December 2012, Mr. Agnaou asked Denis
Desharnais, Director General of the Human Resources Directorate at PPSC,
whether the benefits associated with his priority entitlement could be
protected pending the completion of the Commission’s investigation. He copied Mr.
Bilodeau in that email. Mr. Desharnais informed Mr. Agnaou that the PPSC could
not accommodate his request and Mr. Agnaou replied that he had taken the
necessary steps to protect his priority entitlement and asked him to notify him
if there were any additional steps that were required in this regard.
[18]
On January 3, 2013, Mr. Agnaou’s priority
entitlement expired.
[19]
On February 1, 2013, the Commission’s IB sent Mr.
Agnaou its Investigation Report and, on February 13, 2013, invited him to
submit his comments.
[20]
The Investigation Report concluded that [translation] “Ms.
McCallum made an error that affected the choice of appointee by failing to
verify with the PSC whether there were other persons with a priority
entitlement prior to the appointment of Ms. Thériault. In addition, Ms. Terrien
made an error that affected the choice of appointee by appointing Ms. Thériault
without assessing or considering Mr. Agnaou’s priority candidacy”. The Commission’s
IB proposed, in a letter dated February 13, 2013, that Ms. Terrien and Ms.
McCallum take the Canada School of Public Service’s PO15 Overview of the
Workforce Adjustment Directive course as a corrective action.
[21]
In a letter dated February 25, 2013, Mr. Agnaou
challenged the Investigation Report and the proposed corrective action.
[22]
On April 16, 2013, the Commission’s IB sent a [translation] “Briefing Note to the Commission” in order to obtain final approval
of the Investigation Report and corrective action. Entitled “Final Recommendation”, the note asserts that the
Commission does not have the legal authority to extend Mr. Agnaou’s priority
entitlement, and mentions that he refused to have his candidacy assessed by the
ORSCC during the investigation, when his priority entitlement was still in
force.
[23]
On April 16, 2013, the Commission issued its Record
of Decision, in which it accepted the Investigation Report and ordered the
aforementioned corrective action.
[24]
Mr. Agnaou is seeking judicial review of the
Record of Decision dated April 16, 2013.
II.
Issues
[25]
In this case, the issues may be framed as
follows:
1)
Did the Commission breach procedural fairness in
the conduct of its investigation?
2)
Does the Commission’s decision respect the
purpose of the PSEA, in particular that of section 66?
III.
Standard of review
[26]
There is no need to conduct an exhaustive
analysis of the standard of review applicable to the issues as it has been
satisfactorily established by the jurisprudence with regard to the types of
questions raised in this case (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 62 [Dunsmuir]).
[27]
Thus, the first issue pertaining to possible
breaches of procedural fairness must be reviewed on a correctness standard (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Seck v
Canada (Attorney General), 2012 FCA 314 at para 55 [Seck]).
[28]
In addition, the second issue deals with the
interpretation of the PSEA and is at the heart of the Commission’s mandate and
expertise. Accordingly, such an issue is reviewable on the standard of reasonableness
(MacAdam v Canada (Attorney General), 2014 FC 443 at paras 49-50).
Moreover, the Commission has broad discretion under section 66 of the PSEA to “take any corrective action that it considers appropriate”
and such discretion calls for deference in reviewing this decision.
IV.
Positions of the parties
A.
Mr. Agnaou
[29]
Mr. Agnaou argues that the investigation
conducted by the Commission breached procedural fairness because it failed to
meet basic expectations of neutrality and thoroughness and that the Commission failed
to consider several key pieces of evidence.
[30]
Mr. Agnaou further submits that the Commission breached
procedural fairness by [translation]
“taking its time” to complete its investigation
and by issuing its decision only after his priority entitlement had expired. He
contends that he filed his complaint within the prescribed time period and
caused no delays in the investigation or decision-making process.
[31]
In addition, Mr. Agnaou maintains that the Commission
erred in concluding that no remedial action could be taken in his favour
because his priority entitlement had expired, as neither section 66 of the PSEA
nor the scheme of the Act support such a finding. Rather, the Commission has
the discretion to allow it to issue corrective actions, discretion that must be
exercised in accordance with the nature and purpose of the Act conferring such
authority on it, in this case, the PSEA. According to Mr.
Agnaou, the Commission acted [translation]
“arbitrarily, on the basis of unjustified reasons and
for irrelevant considerations”.
[32]
Mr. Agnaou also contends that the Commission’s
position that it lacked jurisdiction to investigate allegations of improper
conduct of a fraudulent nature is erroneous, and that, on the contrary, section
66 allows the Commission to make findings on fraudulent behaviour.
[33]
Mr. Agnaou is asking this Court to revoke the
appointments to the positions of legal advisor in the 11-SUC-EA-118 and
11-SUC-IA-1221 appointment processes, to order the Commission to take
disciplinary measures against those responsible for his situation, and to order
the ORSCC to appoint him to an LA-2A position if a fair and equitable
assessment of his candidacy indicates that he meets the essential qualifications.
It should be noted that the revocation of Ms. Domey’s appointment, sought by Mr.
Agnaou, is not dealt with in the aforementioned Record of Decision of April 16,
2013, as her appointment occurred as part of the internal appointment process (11-SUC-IA-1221).
That appointment is therefore not part of this Court’s analysis in the context
of the present judicial review.
[34]
Lastly, Mr. Agnaou submits that he is entitled
to a directed verdict, such a verdict being necessary to obtain the only reasonable
outcome in this case.
B.
The respondent
[35]
For his part, the respondent submits that the Commission’s
investigation was conducted in a manner consistent with the principles of
natural justice and that it presented no deficiencies.
[36]
The respondent contends that the investigation
was carried out in accordance with the requirements set out in section 66 of
the PSEA, which allows for the investigation of any external appointment
process and for corrective actions to be taken. In addition, the respondent
points out that the investigation, properly launched under the aegis of section
66 of the PSEA, did not involve potential fraudulent behaviour governed by
section 69 of the PSEA, but was rather intended to determine whether Ms.
Thériault’s appointment was based on merit and to ensure that no error, omission
or improper conduct affected the selection for this appointment.
[37]
The Court must show deference as to the breadth
and depth of the Commission’s investigation.
[38]
The respondent further notes that the Commission
identified two errors made by the ORSCC.
[39]
The respondent submits that the corrective
action ordered is reasonable and that the Commission could not, in this instance,
order disciplinary measures to be taken, given that these are governed by the Public
Service Labour Relations Act, SC 2003, c 22, s. 2.
[40]
The respondent further contends that it was not
open to the Commission to consider a new appointment process as a corrective
action given that Mr. Agnaou’s priority entitlement had expired at the time the
decision was issued, that he was no longer an “employee”
and that the PSEA contains no mechanism to extend this priority entitlement.
Indeed, section 41 of the PSEA sets the entitlement priority as the period
during the employee’s leave of absence and one year thereafter, and there is no
provision that provides for the possibility of extending it.
[41]
The respondent asserts that the duration of the
investigation was completely normal.
[42]
Finally, the respondent argues that the fact of Mr.
Agnaou having a priority entitlement does not confer upon him a right to be
appointed to the desired position, especially given that he refused the offer
presented to him by the ORSCC to assess his candidacy while his priority
entitlement was still in effect.
[43]
Lastly, there are no grounds in this case to
justify issuing a directed verdict.
V.
Analysis
[44]
The Court will restrict its analysis to an
examination of the corrective action chosen as it is dispositive of this
application.
A.
Statutory framework
[45]
The preamble of the PSEA sets this out in the
Whereas clauses, among which we find the following statement:
Recognizing that
…
Canada will
continue to benefit from a public service that is based on merit and
non-partisanship and in which these values are independently safeguarded.
[46]
The Commission’s mission is essentially to
safeguard the integrity of the appointment process in the public service (Preamble,
PSEA; Seck at paras 24, 49).
[47]
According to the Commission’s Policy – Selection
and Appointment and section 2.4 of the Guidance Series – Assessment, Selection
and Appointment of the Commission, documents supported by the PSEA
and sections 5 et seq. of the Public Service Employment Regulations,
SOR/2005-334, a manager cannot appoint a person without having previously
assessed or considered persons with priority entitlement for appointment who
are interested in the position to be filled, to determine whether they meet the
essential qualifications for the position.
[48]
The priority entitlement for public servants on
a leave of absence is set out in section 41 of the PSEA and extends from the
period during the employee’s leave of absence and one year thereafter. The PSEA
does not provide for any extension of the period during which the priority
entitlement is valid.
[49]
Moreover, the investigation in this case was
conducted pursuant to section 66 of the PSEA, which reads as follows:
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External
appointments
66. 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
(a) revoke the appointment or not
make the appointment, as the case may be; and
(b) take any corrective action
that it considers appropriate.
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Nominations externes
66. 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 :
a) révoquer la
nomination ou ne pas faire la nomination, selon le cas;
b) prendre les
mesures correctives qu’elle estime indiquées.
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[50]
Thus, paragraph 66(a) of the PSEA grants
the Commission authority to revoke an appointment.
[51]
Paragraph 66(b) of the PSEA, for its
part, grants the Commission broad discretion to take the appropriate corrective
action.
B. Selection of
corrective action
[52]
In this case, Mr. Agnaou had a priority
entitlement under section 41 of the PSEA and the Commission’s investigation
confirmed that errors had been made by Ms. McCallum and Ms. Terrien. However,
the Commission limited the corrective action to an order directing Ms. Terrien
and Ms. McCallum to take training. The Commission’s IB indicated in a briefing
note to the Commission dated April 16, 2013, that [translation] “[g]iven that this
priority entitlement ended on January 3, 2013, and that the Commission has no
legal authority to extend this period, the Investigations Branch recommends
that no corrective action be taken with respect to Mr. Agnaou”.
[53]
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).
[54]
The Court is of the view that the Commission’s
order in this case is not reasonable in that it tends not to safeguard the
integrity of the public service appointment process. Indeed, the order issued
by the Commission provides no remedy at all to Mr. Agnaou, despite the finding
of a breach in the appointment process (see Plato v Canada (Revenue Agency)
2013 FC 348, at para 21 [Plato]). Moreover, the Commission fails to
explain how the appointment would remain valid in spite of the errors made
during the appointment process. As a result, the Commission failed to meet the
criterion of justification, transparency, and intelligibility within the
decision-making process (Dunsmuir at para 47).
[55]
As this Court affirmed in Plato at para
19:
However, while
the range of acceptable remedial decisions open to CRA in a case like the
present is broad, it is not limitless. At the end of the day, there still
must be some logical connection between the remedy selected and the breach it
is designed to address. If there is no connection, the remedy will be
outside the range of possible acceptable outcomes. As Justice Gagné recently
noted in Backx v
Canadian Food Inspection Agency, 2013 FC 139 in assessing the reasonableness of a remedial award in
a staffing grievance, an award will be set aside if “it is not responsive to
the applicant’s claim and does not provide him any meaningful remedy” (at
para 24). To somewhat similar effect, the courts have long held that there must
be a rational connection between the breach found by other sorts of labour tribunals
and their remedial orders (see e.g. Royal Oak Mines Inc v Canada (Labour Relations
Board), [1996] 1 SCR
369 at p 409). [Emphasis added.]
[56]
In this case, Mr. Agnaou was deprived of the
opportunity to have his candidacy seriously assessed by the ORSCC in the
internal appointment process. The situation in which Mr. Agnaou finds himself
is comparable to that of the applicant in Backx v Canada (Canadian Food
Inspection Agency), 2013 FC 139. Indeed, the Court noted, at paragraph 25:
There is
nothing to suggest that the CFIA’s offer remedied the applicant’s loss of
opportunity in any way, nor that the CFIA took reasonable steps to provide the applicant’s with a suitable remedy
in his particular circumstances. Although it is open to the CFIA to choose how to remedy the loss suffered by the
applicant as it sees fit, it must do so in a reasonable and meaningful manner.
[57]
Despite the conclusion drawn by the Court, it is
not possible to grant Mr. Agnaou’s request to order a directed verdict as the
authority to revoke an appointment falls within the Commission’s discretion; it
may take any corrective action where an appointment process is found to be
deficient. In addition, a directed verdict would not be appropriate, given that
Mr. Agnaou’s candidacy was not assessed and furthermore, the Court record
provides no clue as to whether a position at the LA-2A level is available at
the ORSCC.
[58]
In short, the Court concludes that Mr. Agnaou
was deprived of his priority entitlement and that the Commission must take corrective
action that has a logical connection to the breach found in its Investigation Report
and provide Mr. Agnaou with some sort of meaningful remedy.
[59]
The application for judicial review is allowed. The
matter is referred back to the Commission in order for it to determine a new
corrective action to be taken in accordance with these reasons for judgment.
Costs are awarded to Mr. Agnaou.
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