Ottawa, Ontario, November 18, 2005
PRESENT: The Honourable Justice de Montigny
BETWEEN:
and
ATTORNEY GENERAL OF CANADAAND SANDRA HOUNSELL
REASONS FOR ORDER
[1] This is an Application for Judicial Review of a decision by the Public Service Commission declining jurisdiction to investigate a complaint filed by the Applicant, Sandra Mercer, under s. 7.1 of the Public Service Employment Act, R.S. 1985, c. P-33 (the "Act").
BACKGROUND
[2] The applicant was employed with the Public Service as a Correctional Officer at the CX-2 level. She went on leave from the Public Service due to a disability, and when she returned she was entitled to priority appointment pursuant to s. 36 of the Public Service Employment Regulations (SOR/2000-80). She was assessed by the Public Service Commission as being available for any position at the PM-04 level. Upon her return from leave, there was an available position at the CR-04 level, which is lower than that of her original position. The Applicant exercised her priority rights to obtain that position, but she maintained the entitlement to a reinstatement priority in a PM-04 or equivalent level position under s. 39 of the Regulations.
[3] On or about October 5, 2004, Human Resources and Skills Development Canada (the "Department") offered a PM-03 position to the Respondent Sandra Hounsell. The Department made this offer without first obtaining priority clearance from the Commission and, therefore, without consideration for the Applicant's priority rights. If qualified, the Applicant's priority rights would have entitled her to appointment to this position, regardless of whether other, more qualified candidates applied.
[4] At some point after this position had been offered to Ms. Hounsell, the Department considered the Applicant for the position in accordance with her priority rights. At that point, the Department found that the Applicant was not sufficiently qualified for the position, particularly with regard to the requirements of "extensive experience with Program and Project Implementation" and "Interpretation and application of the Employment Insurance Act and Regulations".
[5] On November 12, 2004, the Applicant filed a request for investigation by the Public Service Commission under s. 7.1 of the Act. In her request, the Applicant alleged that the Department had failed to follow the Act and Regulations because it did not consider the Applicant for the PM-03 position until after that position had been staffed by another employee, and also alleged that the Department had erred in concluding that she was not qualified for the position.
THE IMPUGNED DECISION
[6] On February 5, 2004, the Applicant received a letter from the Commission stating that her complaint would not be investigated. In this letter, the Commission gave several reasons for declining to investigate the Applicant's complaint. The relevant portion of that letter is hereafter reproduced:
In your request, you allege that, as a Reinstatement Priority, you were not fairly considered for a PM-03 position in the Corner Brook office of HRSDC. You indicate that this position was verbally offered to a colleague, Sandra Hounsell, who is on a valid eligibility list for PM-03 positions, prior to the department requesting a clearance number from the PSC. As a result, you believe that when your qualifications were subsequently reviewed, as a priority referral, you were not fairly assessed because, in your view, you meet the requirements for the position, but the Department had already decided on Sandra Hounsell for the position.
I have reviewed your request for investigation on the basis of the Public Service Commission's "Policy on the conditions governing the decision to investigate pursuant to section 7.1 of the Public Service Employment Act" (PSEA), which was sent to you previously. This Policy instructs the Recourse Branch as to which matters the Commission will investigate.
This is to inform you that the Recourse Branch does not accept to investigate your allegation because the situation you outline does not meet the five conditions identified in the above Policy. Specifically, the fact that the RHQ Director Brian Penney contacted Sandra Hounsell because she was on a valid eligibility list, before requesting a priority clearance is not sufficient evidence to establish reasonable grounds that your qualifications would not have subsequently been fairly assessed.
Furthermore, the documents you attached to your request included the rational provided by the Department to the PSC as to why your experience was not considered sufficient. This rationale includes information from your immediate Supervisor that you still required (as of summer 2004) mentoring/monitoring of your work. This is a sufficient and plausible reason why the Department would conclude that you did not have the "expert level of experience" required for the PM-03 position. Finally, no corrective measures could be obtained through an investigation since the logical corrective measure (an assessment of your qualifications for the position) has already occurred.
ISSUES
[7] This application raises two questions :
- What is the appropriate standard of review?
- Did the Commission err in declining to investigate the Applicant's complaint?
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RELEVANT LEGISLATIVE PROVISIONS
Public Service Employment Act Loi sur l'Emploi dans la fonction publique
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7.1 The Commission may conduct investigations and audits on any matter within its jurisdiction.
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10. (1) Appointments to or from within the Public Service shall be based on selection according to merit, as determined by the Commission, and shall be made by the Commission, at the request of the deputy head concerned, by competition or by such other process of personnel selection designed to establish the merit of candidates as the Commission considers is in the best interests of the Public Service.
(2) For the purposes of subsection (1), selection according to merit may, in the circumstances prescribed by the regulations of the Commission, be based on the competence of a person being considered for appointment as measured by such standard of competence as the Commission may establish, rather than as measured against the competence of other persons.
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7.1 La Commission peut effectuer les enquêtes et vérifications qu'elle juge indiquées sur toute question relevant de sa compétence.
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10. (1) Les nominations internes ou externes à des postes de la fonction publique se font sur la base d'une sélection fondée sur le mérite, selon ce que détermine la Commission, et à la demande de l'administrateur général intéressé, soit par concours, soit par tout autre mode de sélection du personnel fondé sur le mérite des candidats que la Commission estime le mieux adapté aux intérêts de la fonction publique.
(2) Pour l'application du paragraphe (1), la sélection au mérite peut, dans les circonstances déterminées par règlement de la Commission, être fondée sur des normes de compétence fixées par celle-ci plutôt que sur un examen comparatif des candidats. |
Public Service Employment Regulations Règlement sur l'emploi dans la fonction publique (2000)
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35. (1) Subject to subsection (2) and section 40, a surplus employee is entitled, during the surplus period, to be appointed without competition and, subject to sections 29, 30 and 39 of the Act, in priority to all other persons, to a position in the Public Service for which, in the opinion of the Commission, the surplus employee is qualified.
(2) A surplus employee who is appointed or deployed for an indeterminate period, who refuses a reasonable job offer or who is laid off ceases to be entitled to be appointed to a position under subsection (1).
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39. (1) Subject to subsections (2) and (3) and section 40, an employee referred to in subsection 35(1) or 36(1) or in section 29 of the Act who is appointed or deployed to a position at a lower level is entitled to be appointed without competition and, subject to sections 29, 30 and 39 of the Act, in priority to all other persons, to a position in the Public Service that is of a level that is not higher than the position the employee held immediately before the date the appointment or deployment to the lower level position took effect and for which, in the opinion of the Commission, the employee is qualified.
(2) The entitlement under subsection (1) is for a period of three years beginning on the day of the appointment or deployment to the lower level.
(3) An employee referred to in subsection (1) who is appointed or deployed for an indeterminate period to a position that is of a level equivalent to or higher than the position the employee held immediately before the date that the priority entitlement took effect, or who declines such an appointment or deployment for an indeterminate period without good and sufficient reason, ceases to be entitled to be appointed under that subsection.
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35. (1) Sous réserve du paragraphe (2) et de l'article 40, tout fonctionnaire excédentaire a le droit, pendant la période durant laquelle il est excédentaire, d'être nommé sans concours et, sous réserve des articles 29, 30 et 39 de la Loi, en priorité absolue à un poste de la fonction publique pour lequel la Commission le juge qualifié.
(2) Le fonctionnaire excédentaire perd le droit de nomination conféré par le paragraphe (1) s'il est nommé ou muté pour une période indéterminée, s'il refuse une offre raisonnable d'emploi ou est mis en disponibilité.
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39. (1) Sous réserve des paragraphes (2) et (3) et de l'article 40, le fonctionnaire visé aux paragraphes 35(1) ou 36(1) ou à l'article 29 de la Loi qui a été nommé ou muté à un poste de niveau inférieur a le droit d'être nommé sans concours et, sous réserve des articles 29, 30 et 39 de la Loi, en priorité absolue à un poste de la fonction publique qui n'est pas de niveau supérieur à celui du poste qu'il occupait au moment de la nomination ou de la mutation au poste de niveau inférieur et pour lequel la Commission le juge qualifié.
(2) Le paragraphe (1) s'applique pendant une période de trois ans à compter de la date de la nomination ou de la mutation.
(3) Le fonctionnaire visé au paragraphe (1) perd le droit de nomination conféré par ce paragraphe s'il est nommé ou muté pour une période indéterminée à un poste d'un niveau équivalent ou supérieur à celui du poste qu'il occupait au moment où lui était conféré le droit de nomination prioritaire, ou s'il refuse une telle nomination ou mutation sans motifs valables et suffisants. |
Policy on the conditions governing the decision to investigate pursuant to Section 7.1 of the Public Service Employment Act
PREFACE
This policy specifies the conditions governing the decision to investigate pursuant to section 7.1 of the Public Service Employment Act (PSEA).
POLICY OBJECTIVE
To provide criteria on which the Commission, and its delegates in the Recourse Branch, will base their decision to exercise the discretionary power to investigate pursuant to section 7.1 of the PSEA.
APPLICATION
An investigation pursuant to section 7.1 could be conducted to examine a matter concerning the application of the PSEA in accordance with the requirements of this policy.
POLICY REQUIREMENTS
1. Individual matters
Pursuant to section 7.1 of the PSEA, the Commission could exercise its power to investigate individual matters if all of the five following conditions are met:
a) On the face of it, if proven to be true, the matter raised would constitute a defect in the application of the PSEA.
b) The matter falls within the Commission's jurisdiction.
Note 1: For greater certainty, this excludes investigating the application of section 26 (resignation), 28 (probation), 29(1) and (2) (lay off), and 34.1 (deployment) of the PSEA and the sections of Public Service Employment Regulations, 2002 (PSER) pertaining to the aforementioned sections of the Act, and the non-extension of employment for an employee appointed for a specified period, since the exercise of these authorities belongs to the deputy head, not the Commission.
Note 2: The Commission could decide to investigate on the application of section 32 (reverse order of merit) of the PSER if, despite paragraph c), the complaint if filed within 14 days of the date of the letter informing the person involved of the result of such exercise.
c) The matter is raised with the Commission within three months of the date on which the alleged defect occurred.
Note: The Commission may, under exceptional circumstances, decide to investigate after the three-month period has expired, but in any event, the extended period cannot exceed six months after the date on which the alleged defect occurred.
d) There still exists a possibility of prescribing corrective measures or issuing recommendations for the matter raised.
Note: The Commission will normally not investigate allegations related to unproductive internal or open competitions, but according to the circumstances may conduct investigations where the position to be staffed through that process is subsequently filled within four months of the notice of non-productivity otherwise than by a priority appointment or a deployment.
e) There is not other recourse available for the matter raised, either under the PSEA, a collective agreement, or any other Act, such as the Public Service Staff Relations Act, the Canadian Human Rights Act.
Note: The Commission will normally not exercise its power to investigate when the general recourse provided for the matter raised under the PSEA is excluded by another particular provision of the Act, by Regulations of Exclusion Order as, for instance, in cases of priority appointment, an acting appointment of less than four months, and the non-delegated appointment of an EX within the EX group.
ANALYSIS
A) Standard of review
[8] The standard of review of an administrative decision is determined through the pragmatic and functional approach as set out by the Supreme Court of Canada in cases such as Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Four contextual factors need be taken into account under this approach: 1) the presence or absence of a privative clause or statutory right of appeal; 2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; 3) the purposes of the legislation and the provision in particular; and 4) the nature of the question - law, fact or mixed law and fact.
[9] The first factor focuses on the statutory mechanism of review. The decisions rendered by the Public Service Commission are not protected by a privative clause, but there is no statutory right of appeal from its decisions. Silence on the question of review has been interpreted as being neutral.
[10] With respect to the second factor, the Supreme Court has held that the analysis under this heading "has three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise" (Pushpanathan, supra, para. 33).
[11] The Applicant argues that the discretion flowing from section 7.1 is not subject to mandatory requirements of expertise, and that there was no fact-finding undertaken by the decision-maker. This Court has had the opportunity to consider the expertise of the Public Service Commission with regard to the Application of the Act in Harquail v. Canada (Public Service Commission), [2004] F.C.J. No. 1896 (QL), 2004 FC 1549. In that case, Kelen J. found that "the Commission has some expertise relative to the Court because it is responsible for the supervision of the Public Service, it is charged with the on-going implementation of the Public Service Employment Act and it has expertise in the application of subsection 33(3)" (at para. 28). I believe that a similar reasoning holds in the context of s. 7.1, as the Commission clearly has experience and expertise in staffing measures such as competitions and other methods of assessment, deployments and assignments, priorities, and employment-related complaints. The Commission must also regularly decide whether or not to investigate matters under its jurisdiction. As such, this factor weighs in favour of granting a greater level of deference to the Commission in this matter.
[12] As for the purpose of the legislative provision at play here, I need go no further than what my colleague Mosley J. said in Oriji v. Canada (Attorney General), [2004] F.C.J. No. 815:
[21] First, the "dominant objective" of the PSEA is to ensure that selection and appointment to the Public Service of Canada takes place according to merit: see Bambrough v. Public Service Commission Appeal Board, [1976] 2 F.C. 109 (C.A.) at 115 and Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437 (C.A.)(QL). The purpose of an investigation conducted pursuant to s. 7.1 of the PSEA is to provide a recommendation to the PSC so that the PSC may take any corrective action that it considers appropriate (see section 7.5 of the PSEA). The power to provide such recommendation is discretionary, rather than mandatory.
[22] Renée Caron in Employment in the Federal Public Service (Aurora, Ont.: Canada Law Book Inc., 2003) at 6-70 describes section 7.1 as a "general residual power" by which the Commission may conduct investigations in areas for which an appeal mechanism is not already provided in the PSEA, including such important matters as appointments in open competitions and disputes over priorities for appointment.
[13] There is no doubt that the legislative purpose of the Act as a whole is to safeguard the public interest by ensuring that appointments to the Public Service are based solely on merit and are free of discrimination and bias. But it is equally true that s. 7.1, as a residuary clause, was meant to afford redress to all those who feel aggrieved by a particular staffing decision not subject to a right of appeal, including such important matters for an individual as appointment in open competition and disputes over priorities for appointment.
[14] It is true that the Commission is not obliged to investigate every complaint that it receives. The case law in this respect is quite clear. For example, in Patel v. Canada (Public Service Commission), [1996] F.C.J. No. 127 (QL), Denault J. stated: "With respect to section 7.1, Parliament, by specifically using the word "may", has conferred upon the Commission the discretion to conduct investigations within its jurisdiction. There is no obligation for it to do so" (para. 8) (see also Nault v. Public Service Commission of Canada, [2002] F.C.J. No. 1766 (F.C.) (QL)). But in coming to such a conclusion, the Commission affects the rights and interests of an individual at least as much as it relates to the public interest in an independent and qualified public service. As a result, I am of the view that this factor weighs in favour of giving less deference to the Commission.
[15] Finally, in terms of the nature of the question before the Commission, a distinction must be drawn between the various arguments put forward by the Applicant. When the Applicant submits that the policy guidelines fetter the discretion of the Commission, both in their wording and in the manner in which they were applied, she clearly raises a question of law to which less deference applies. As for the decision of the Commission that the Applicant did not demonstrate that she was qualified and that no corrective measures could be obtained through an investigation, these were clearly decisions of mixed fact and law as it involved the application of a legal or quasi-legal standard to a set of facts. To that extent, these decisions call for a greater amount of deference.
[16] All things being considered, I am of the view that the appropriate standard of review to apply in the present case is twofold: on the proper interpretation of the policy, a standard of correctness should govern, whereas a standard of reasonableness simpliciter is applicable when assessing the reasons given by the Commission for not investigating the Applicant's complaint.
B) The Decision of the Commission Not to Investigate
[17] The Applicant submits that the policy used by the Commission in its decision cannot be legally binding, since it was not enacted pursuant to any statutory power. Given the broad statutory mandate conferred by s. 7.1, the Commission cannot rely on its own internal guidelines or policies to fetter its policies, or to fetter its jurisdiction investigate matters for which it offers the only available mechanism for redress. Accordingly, the Applicant is of the view that the Commission committed an error of law and fettered its discretion by reaching its decision following nothing more than the mechanistic application of the policy.
[18] First of all, it is important to note that the Supreme Court of Canada has held that policy guidelines may be issued and used to guide the exercise of discretion without fettering it, so long as they are not interpreted to be binding in such a manner as to cause the exclusion of other relevant factors: Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 (applied by this Court in Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage), [2004] F.C.J. No. 735 (QL), 2004 FC 597; Neilans v. Canada (Attorney General), [2004] F.C.J. No. 908 (QL), 2004 FC 716. As D.J.M. Brown and Evans, J.A. observed in their treatise Judicial Review of Administrative Action in Canada, Vol. 2 (Toronto: Canvasback Publishing, 1998, at p. 12-39), "...formulating guidelines and written reasons for decision can enhance the quality of decision-making and administrative justice by increasing certainty, reducing inconsistencies and raising the level of accountability to the public".
[19] In the case at bar, as in Maple Lodge Farms, supra, the policy provisions in question are not worded in a strictly binding manner. The Policy Objective is "to provide criteria on which the Commission...will base their decision to exercise the discretionary power to investigate pursuant to section 7.1 of the PSEA". This is clearly not indicative of an intention to bind the Commission with hard-and-fast rules. The same is true of the wording of the Policy Requirements in individual matters. The introductory paragraph states that the Commission "could" exercise its power to investigate individual matters if all of the five enumerated conditions are met. It doesn't say that the Commission will necessarily investigate if all the conditions are met, and it doesn't entirely rule out the possibility of an investigation if any of these conditions are not met, as is made abundantly clear from the reading of the notes following each of these conditions.
[20] Although it is clear that the Commission used the Policy in making its decision with regard to the Applicant, there is nothing to indicate that the Policy was treated as legally binding, nor that its application caused the Commission to overlook relevant evidence in its decision. As a matter of fact, the Commission clearly acknowledged the fact that Ms. Hounsell was offered the position prior to the consideration of the Applicant for that position, which was an essential aspect of the Applicant's complaint.
[21] The Applicant also submits that the Commission did not meet its duty of procedural fairness because it failed to acquaint the Applicant with the case she would have to meet and give her an opportunity to respond, and specifically that the Commission should have informed her of the findings in the jurisdiction review conducted prior to its decision.
[22] It is trite law that every decision-maker is required to comply with the rules of procedural fairness. The content of this duty, however, will vary depending on the circumstances. At a minimum, an administrative decision-maker must inform interested parties of the case against them and afford them a genuine opportunity to respond by making all relevant representations in relation thereto.
[23] It is clear from the evidence, and it is not contested, that the Applicant was aware of the Department's reasons for failing to appoint her, and of the policy on which the Commission would base its decision. As such, there is nothing to indicate that the Applicant would have been unaware of the case she would have to meet in making a complaint under s. 7(1) of the Act. There was a jurisdiction review dated February 1, 2005, undertaken by the Commission, and the Applicant argues that the Commission breached the duty of procedural fairness by not providing her with a copy of this document. However, it is difficult to see how this would have prejudicially affected the applicant in any way, as the jurisdiction review document contains primarily information that the applicant was already aware of, such as the facts of her situation, her own position and that of the Department, and the grounds on which the Commission would make its decision. The document also contained a recommendation to decline to investigate the Applicant's complaint, but this can be seen as a part of the decision process, and there is nothing in the duty of fairness that would have required its disclosure to the Applicant, as the reasons and decision of the Commission were made clear to the Applicant as soon as the decision itself was made.
[24] I am aware that a number of requirements have been developed by the courts in the context of s. 44 of the Canadian Human Rights Act to ensure that the Human Rights Commission complies with its obligation to act fairly in deciding not to refer a complaint to the Tribunal. Whether similar requirements should be read into s. 7.1 of the Act now under consideration need not be decided here, since the procedure followed in the present case appears deficient even on a minimalist interpretation of the duty of fairness.
[25] It is clear from the record that after having received the complaint from the Applicant, the Commission communicated with Mr. Hollett, Regional Director of the Human Resources of the Respondent Department. He was asked for additional information "to help in our determination on whether or not to accept this request for investigation". One of the questions was whether the Applicant had been given any detailed reasons as to why she was not considered qualified for this position. A few days later, that request for information was answered by Mr. Kevin Walsh, Human Resources Consultant with the Department.
[26] This exchange of emails, in my view, was most unfortunate and was a clear violation of the Commission's duty of fairness towards the Applicant. While it is no doubt true that the Applicant had ample opportunity to present her case and did in fact file forty-four (44) pages of documents and submissions with the Commission, the fact remains that she could not reply to the Department's "information" subsequently provided to the Commission. Indeed, counsel for the Applicant contended at the hearing that the Department never really answered the concerns raised by the Applicant in her complaint, noticeably that her qualifications were not properly and impartially assessed because the position had already been offered to and accepted to another employee by the time her application was considered.
[27] The Policy is quite clear that the Commission is not to investigate at this stage. It is only required to determine whether the matter raised would constitute a defect in the application of the PSEA if proven to be true, on the face of it.
[28] A careful reading of the letter sent to the Applicant on February 3, 2005, apprising her of the decision not to investigate her complaint, reveals that the Commission not only breached its duty of procedural fairness by contacting the Department without her knowledge, but also imposed a much higher burden of proof than the Applicant could reasonably have anticipated as required at this preliminary stage. In stating that "...the fact that the RHQ Director Brian Penney contacted Sandra Hounsell because she was on a valid eligibility list, before requesting a priority clearance is not sufficient evidence to establish reasonable grounds that your qualifications would not have subsequently been fairly assessed", the Commission went well beyond the requirement of establishing a prima facie case. The same is true of the two other findings on the basis of which the decision not to investigate was taken. The conclusions that "the Department had given a sufficient and plausible reason why it determined that the Applicant did not meet one of the qualifications for the position", and that "no corrective measures should have been taken, since the Applicant's qualifications had already been assessed", could not properly be arrived at before conducting an investigation.
[28]
[29] We must always remember that the objective of the Public Service Employment Act is to foster a first-rate Public Service, by adhering to the values of transparency, openness, and merit. The complaint brought by the Applicant, at its core, raised an allegation of bias and of a prejudiced assessment of her qualifications. Once such an allegation of bias appears credible, on its face, the case law directs that all the surrounding circumstances be examined to determine if the reasonable perception of bias has effectively materialized and influenced the outcome of the appointment process. This exercise, by implication, requires an investigation and cannot be dealt with summarily. In dismissing the complaint of the Applicant, the Commission therefore made a reviewable error.
[30] For all these reasons, I would allow this Application for Judicial Review, quash the decision of the Public Service Commission dated February 3, 2005, and refer the matter back to the Commission to be investigated in accordance with these reasons. There will be no costs.
"Yves de Montigny"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-460-05
STYLE OF CAUSE: Sandra Mercer
v.
Attorney General of Canada and Sandra Hounsell
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 9th, 2005
REASONS FOR ORDER: Justice de Montigny
APPEARANCES:
| Mr. David Yazbeck
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| Ms. Tatiana Sandler
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SOLICITORS OF RECORD:
| Mr. David Yazbeck Raqven, Allen, Cameron & Ballantyne Ottawa, Ontario
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| Mr. John Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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