MacAdam v. Canada (Attorney General)

MacAdam v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2014-05-12
Neutral citation
2014 FC 443
File numbers
T-1620-12, T-1673-12, T-1682-12
Decision Content
Date: 20140512
Dockets: T-1620-12
T-1673-12
T-1682-12
Citation: 2014 FC 443
Ottawa, Ontario, May 12, 2014
PRESENT: The Honourable Mr. Justice Mosley
Docket: T-1620-12
BETWEEN:
KEVIN MACADAM
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-1673-12
AND BETWEEN:
KENT ESTABROOKS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Docket: T-1682-12
AND BETWEEN:
PATRICK DORSEY
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] These are applications for judicial review, under s 18.1 of the Federal Courts Act RSC, c F-7, of Public Service Commission (PSC or Commission) decision #2012-085-IB dated August 8, 2012.
[2] The decision followed an investigation pursuant to sections 66 and 68 of the Public Service Employment Act, SC 2003, c 22 (the PSEA) into the appointment of Kevin MacAdam, under process number 10-ACO-EA-HO-68, to the position of Director General, Operations – PEI (DG Operations) at the EX-2 group and level, by the Atlantic Canada Opportunities Agency (ACOA).
[3] The Commission found that the behaviour of Patrick Dorsey, Kent Estabrooks, Paul LeBlanc and Monique Collette in the appointment process constituted improper conduct that affected the selection of Mr MacAdam for appointment to the position.
[4] The three applications were initiated separately but consolidated and heard together on consent. Messrs MacAdam and Estabrooks seek an order quashing the Commission’s decision, remitting the matter to the Commission for redetermination, and costs. Alternatively, Mr MacAdam seeks a direction that the Commission appoint him to another position pursuant to s 73 of the PSEA, and costs. Mr Dorsey seeks an order quashing the Commission’s decision and costs. The respondent seeks an order dismissing the applications and costs.
[5] For the reasons that follow, the applications are dismissed.
I. BACKGROUND: [6] The following facts are drawn from the record and, in particular, from the Amended Investigation Report prepared by the Commission. While inferences drawn from these facts by the Commission were disputed by the applicants, the facts themselves were not seriously contested.
[7] ACOA is a Canadian federal government agency responsible for funding economic development in the Atlantic provinces. It is based in Moncton, New Brunswick and has regional offices in Fredericton, New Brunswick, Charlottetown, PEI, Halifax, Nova Scotia and St. John’s, Newfoundland and Labrador. Appointments to positions within ACOA are made in accordance with the PSEA. The authority to carry out staffing under the PSEA is delegated from the President of the Public Service Commission to the President of ACOA. The President of ACOA is responsible for decisions made regarding appointments to and within the organization.
[8] The DG Operations is the “second in command” position in ACOA’s PEI office, and was established by consolidating the responsibilities of two former positions: DG, Enterprise Development and Policy, the former “second in command” position, at the EX-02 level, and DG, Community Economic Development, at the EX-01 level. ACOA’s three other regional offices have had a similar position since 2006. Between 2006 and 2011, five internally advertised processes were used to fill these positions. These advertisements were the same as the one used in the case at bar, apart from the fact that they were all internally advertised processes.
[9] The applicant, Kevin MacAdam, was a researcher and speech writer for the Leader of the Official Opposition (Progressive Conservative Party) in Prince Edward Island following graduation from university. Between 1996 and 2006, he was a Cabinet minister in the PEI government. In 2000, he was an unsuccessful Conservative candidate in the federal election. From February 2006 to January 2010, Mr MacAdam occupied a political staff position in the office of the Honourable Peter MacKay, then Minister of Foreign Affairs and of ACOA. From January 2010 to February 2011, when Mr MacAdam was appointed to the DG Operations position, Mr MacAdam was the Deputy Chief of Staff to the Honourable Keith Ashfield, then Minister for the Atlantic Gateway, Minister of National Revenue and Minister of ACOA.
[10] Monique Collette was a career public servant and President of ACOA from 2003 to 2010. Mme Collette was, therefore, responsible for staffing of executive level positions at the time the appointment process at question in these proceedings was initiated. However, she had delegated much of the staffing responsibility to Paul LeBlanc, then Associate Deputy Minister of ACOA.
[11] Mr LeBlanc became President of ACOA on November 15, 2010 following Mme Collette’s retirement and, in that capacity, signed the letter of offer to Mr MacAdam. From a discussion with Mr MacAdam, Mr LeBlanc had known of Mr MacAdam’s interest in a position with ACOA for about a year prior to the start of the appointment process. They had discussed anticipated vacancies in ACOA in the region and in Ottawa. Mr LeBlanc had shared that information with Mme Collette. Mr MacAdam had asked Mr LeBlanc about the technicalities of joining the public service as a political staffer and sought advice. Mr MacAdam was not aware before these discussions, according to Mr LeBlanc, that an entitlement to priority consideration of former minister’s staff for appointment to positions in the public service no longer existed.
[12] When first interviewed, Mr MacAdam denied having had these discussions with Mr LeBlanc or anyone else within ACOA. He stated that he first knew of the opening for the DG Operations position when he saw it advertised in November 2010. He said he had no inkling the opportunity might be forthcoming and had not received any advance notice to look for the job posting. He qualified those remarks following release of the initial report prepared by the investigators to acknowledge that he had made general inquiries about life in the public service.
[13] The applicant, Patrick Dorsey, was the ACOA Vice-President-PEI at the time of the appointment process and had held that position since January 2007. He is described in the complaint that led to the PSC investigation as “a long time Conservative organizer and communications director to former PEI Premier Pat Binns”. In that role he would have known Mr MacAdam, then a Minister in the Binns government. They subsequently had further contacts through their respective roles in relation to ACOA and contact at political events. In 2010 Mr Dorsey was also chair of the Regional Federal Council for PEI, a forum for the exchange of information between federal departments and agencies, and chair of the national meetings of regional councils.
[14] Wayne Hooper served as special advisor to Mr Dorsey and has acted in the position as DG – Operations while Mr MacAdam has been on language training. Mr Hooper was a friend of Mr MacAdam’s and from the same community on the Island. He had served as Deputy Minister to Mr MacAdam in the PEI Progressive Conservative government. The appointments of Messrs Dorsey and Hooper to ACOA were the subject of separate PSC investigations. Mr Hooper was acting Vice-President in the PEI ACOA office at the time that Mr MacAdam discussed his interest in the position with Mr LeBlanc because Mr Dorsey was on language training. Messrs LeBlanc and Hooper discussed proceeding with a competition to staff the position.
[15] The applicant, Kent Estabrooks, was the Director General of Human Resources, ACOA at the time of the appointment. He replaced Charlene Sullivan in that position while she was away on a one year assignment from September 2010. Mr Estabrooks’ functional reporting relationship at ACOA PEI was to Mr Dorsey but his direct superior in the agency was Denise Frenette, Vice-President Finance and Corporate Services.
[16] Lorraine Léger served as Director, Staffing and Human Resources Programs for ACOA and was the operational HR advisor during the appointment process.
A. Creation of the DG Operations position [17] In July 2010, Ms Sullivan, the DG Human Resources at that time, advised Mr Dorsey that in her opinion, there would not, subject to Mme Collette’s discretion as President, be any support for a bilingual non-imperative staffing action given financial pressures on the agency and the costs involved in second language training if the successful candidate did not have the required level of language proficiency. In August 2010 she advised Mme Léger of Mr Dorsey’s intent to staff the DG Operations position and of her recommendation that it be staffed internally. Following a teleconference with Mr Dorsey, Ms Sullivan advised him that he could proceed with staffing the position on a bilingual imperative or non-imperative basis.
[18] Brian Schmeisser who had been at ACOA for 22 years, was DG, Community Economic Development and Infrastructure at the EX-2 level until August 2010. At that time, Mr Schmeisser accepted an interchange assignment to the Province of PEI, a process which, according to Mr Schmeisser, had been initiated and encouraged by Mr Dorsey. ACOA officials agreed to pay 50% of his salary if the assignment was accepted. Following Mr Schmeisser’s departure, the DG Operations position was created absorbing his responsibilities. According to Mr Schmeisser, he had expressed interest in the position to Mr Dorsey on a number of occasions, but Mr Dorsey had indicated that he did not meet the language requirements. Ms Sullivan acknowledged, when interviewed, that Mr Schmeisser’s departure was a factor in staffing of the DG Operations position. Without it, she did not know that it would have gone ahead as the organizational structure for a small branch like that in PEI would not have supported another DG at the EX-2 level.
[19] When initially interviewed by the PSC investigators, Mr Dorsey stated that no other options such as an Interchange Canada assignment or an internal process were considered for staffing the position. He did not recall any discussions with HR personnel about his decision to use an external advertised process. No attempts were made to test whether an internal pool of bilingual candidates could be established. Mr Dorsey stated that he had a general sense of the potential candidates including Mr MacAdam and had discussed Mr MacAdam’s interest with Mr LeBlanc. He did not send information about the position to his Federal Regional Council network. He wished to complete the process before he himself went on an additional period of French language training in February 2011.
[20] On October 27, 2010, Mme Léger advised Mr Estabrooks, who by then had replaced Ms Sullivan, that a rationale for non-imperative staffing was needed. She originally tried to send this information using her BlackBerry’s PIN feature, which allows for device to device message transmission, by-passing the internal departmental email servers. Mme Léger had only used this feature once before to protect the confidentiality of certain information. The following day, October 28, 2010, in an email, Mme Léger asked Mr Dorsey to speak to Mr Estabrooks about his plans for the position.
[21] Mr Estabrooks reported to Denise Frenette, Vice President, Finance and Corporate Services, on the conversation that followed within an hour of Mme Frenette’s contact with Mr Dorsey. In his email message Mr Estabrooks wrote:
… I explained about the three conditions we had discussed and Pat [Dorsey] wasn’t aware of the condition related to “vacating the job”… With that in mind I recommended he go external… He said he preferred to go internal, but that he understood the dynamics/issue and he’d be okay with that; I explained that based on the standard criteria in the SMC’s for DG Ops I’ve seen, external processes can be reasonably tight in terms of requirements, which mitigates the volume of applications and helps with the rationale for non-imperative.
[22] Mr Dorsey was asked by the PSC investigators about Mr Estabrooks’ references to “dynamics/issue”, Mr Dorsey’s preference for an internal process, and the condition related to “vacating the job”. According to Mr Dorsey, the “dynamics/issue” comment referred to the timeframe and ability to attract good candidates. He said that his preference for an internal process was due to the workload that an external process could generate. He stated that he did not know what the condition of “vacating the job” meant. He did not recall discussing any particular candidate with Mr Estabrooks, nor the eligibility of ministers’ staff.
[23] When shown this email during the investigation Mme Frenette initially stated that it was a situation of giving Mr MacAdam access to the process. He had expressed interest in the position. The factor that changed the decision from using an internal process to an external process was the fact that Mr MacAdam still had his job in the Minister’s office. Mr Estabrooks had explained this to her. She later qualified her statements by saying she did not know this to be a fact but assumed it was the case. She was certain that Mr Estabrooks had discussed the implications of s. 35.2 of the PSEA with Mr Dorsey.
[24] S. 35.2 of the PSEA was enacted in 2006 as part of the Federal Accountability Act, 1st Sess, 39th Parl, 2006, cl 10. The intent was to eliminate preferential hiring for ministers’ political staff. Previously, ministerial staff were entitled to bypass the normal public service competitive hiring process and be appointed to positions in the public service with priority over others. The intent of the amendment in 2006 was to reduce the potential for politicizing the public service. As declared at the time, this previous entitlement “undermined both the non-partisan nature of the public service and its adherence to the merit principle”: http://www.tbs-sct.gc.ca/faa-lfi/fs-fi/16/06fs-fi-eng.asp. The amendment allowed persons who had been employed for three years with a minister to apply for internal public service competitions for a period of one year after the end of their employment. To be eligible to apply for these internally advertised positions, they had to first resign or “vacate” their political job, as described by Mr Estabrooks in the email to Mme Frenette.
[25] Mr Estabrooks acknowledged that he researched this provision when he was made aware that a person in the minister’s office was interested in the position. He did not know at the time that it was Mr MacAdam. His research was prompted by a question from Mr Dorsey.
[26] On October 28, 2010 Mr Dorsey signed a Human Resource Action Request to initiate an external advertised appointment process with a bilingual non-imperative language requirement. A day later, he sent a memorandum to Mme Colette seeking approval to staff the DG Operations position on a non-imperative basis. He wrote:
The intent is to advertise as broadly as possible through a national external advertised process, which is expected to yield some very qualified candidates. However it is anticipated that many applicants will be unilingual or have only a functional (B) level proficiency in French. It is important to provide those individuals with the opportunity to have access to this position.
[27] On November 2, 2010 ACOA advertised the position on the PSC’s website: jobs.gc.ca. The position was listed as being located in PEI and as having an indeterminate (permanent) tenure. The language requirements were listed as bilingual non-imperative, meaning that the candidate selected for appointment would be eligible for language training in the event they did not meet the specified level of proficiency (CBC) at the time of appointment.
B. The appointment process [28] The deadline for receipt of applications was fixed at November 15, 2010. By that date, 73 applications were received but 48 were automatically screened out by the PSC’s automated resourcing system. That left 25 applications that were referred to ACOA. Of those, 14 were screened out by Mme Léger and the remainder referred to Mr Dorsey for further review. He determined that 6 individuals met the screening requirements and they were invited for an interview. Two withdrew from the process, leaving four, including Mr MacAdam, to be interviewed by the assessment board.
[29] The board was comprised of Mr Dorsey, Paul Mills, VP, ACOA-Newfoundland and Labrador, and Melissa McEachern, a Deputy Minister from the PEI provincial government. Mme Léger was in attendance to provide guidance and take notes. On December 15, 2010 the assessment board determined that only one of the four candidates interviewed met all of the essential qualifications, that being Mr MacAdam. Following reference checks over the next few days conducted by an external consultant, Mr MacAdam was sent a letter offering him the DG Operations position which he accepted on January 4, 2011. This predated confirmation of his educational credentials which occurred a few days later. The effective date of appointment was February 7, 2011. Mr MacAdam thereupon began language training.
[30] At the hearing of this application in January 2014, counsel advised that Mr MacAdam hoped to be in a position to pass the required language tests in the near future. It appears that he was on language training in the National Capital Region continuously from January 2011.
C. The complaint [31] In a letter dated February 4, 2011, Brian Murphy, Chair of the Liberal Party of Canada, Atlantic Caucus, advised the PSC of his concern over the political affiliation of the directors and managerial personnel of the ACOA regional offices that had been appointed by the Conservative Government. Mr Murphy referred to the hiring of Messrs Dorsey, MacAdam and Hooper. Mr Murphy urged the PSC to consider the possibility of overruling some of the nominations which, he said, were partisan and becoming the norm at ACOA.
D. The investigation [32] By letter dated March 18, 2011, the PSC Investigation Directorate (the Investigation Directorate) advised Mr MacAdam of Mr Murphy’s letter and allegations. The letter informed Mr MacAdam that pursuant to s 66 of the PSEA, the Investigation Directorate would investigate the possibility of irregularities concerning the appointment process which might have an impact on the merit principle, or that there was an error, an omission or improper conduct that affected the selection of the person appointed. Pursuant to s 68 of the PSEA, the Directorate would investigate the possibility that the appointment was not free from political influence.
[33] Interviews were conducted in 2011. On April 11, 2012, those who had been interviewed were provided with an initial factual report which summarized the relevant information gathered during the course of the investigation. They were asked to provide any comments or submissions on that collected information, which some chose to do.
[34] In a letter dated July 12, 2012, those interviewed were informed that the investigation was complete. They were provided with a copy of the Investigation Report which set out the facts as found by the investigators, their analysis, and conclusions. The recipients were asked to provide comments and submissions on the Investigation Report and the proposed corrective actions, which, again, some chose to do.
[35] The Investigation Report concluded that Mr MacAdam met the essential qualifications of the DG Operations position and that there was no political interference in his appointment. However, the report found that the behaviour of Patrick Dorsey, Kent Estabrooks, Paul LeBlanc and Monique Collette in the staffing process constituted improper conduct that affected the selection of Mr MacAdam.
[36] Among other things, the investigators concluded that Mr Dorsey’s assertion that the external process was chosen to address his concern about attracting a sufficient pool of candidates was not credible. As noted above, Mr Estabrooks had researched the conditions for political staff applying to internal appointment processes on Mr Dorsey’s request. He recommended an external process to Dorsey on the basis of this research. Mr MacAdam’s eligibility to be considered in the appointment process was, therefore, a key factor in Mr Dorsey’s decision to use an external process, the investigators concluded.
[37] Mr Dorsey’s initial preference for an internal process had been documented by Mr Estabrooks in the email sent October 28, 2010. The investigators inferred that Mr Dorsey’s acceptance of Mr Estabrooks’ recommendation indicated that his decision was based on Mr MacAdam’s personal circumstances.
[38] Mme Léger had told the investigators that rumours were circulating within ACOA around the time the process was advertised to the effect that the job was for a particular individual. She recalled hearing Mr MacAdam’s name being mentioned.
[39] Mr MacAdam had little competition for the position amongst the candidates interviewed. The investigators noted that while Mr Dorsey was not obligated to share information on the job opportunity with anyone, he acknowledged that he did not share the information with his Federal Council network, an obvious source of potential candidates, or the PEI regional council.
[40] Thus, the investigators concluded, on the balance of probabilities, key decisions in the appointment process were based on Mr MacAdam’s language abilities and position as a Minister’s staff member - which they found to be unsuitable behaviour. These key decisions affected Mr MacAdam’s appointment since he would not have been eligible to apply had they not been made.
[41] Mr Dorsey was the key decision-maker in the process of creating and filling the DG Operations position. He was instrumental in Mr Schmeisser’s external assignment, which allowed for the creation of the new position. Mr Dorsey’s decision to advertise externally was based on Mr MacAdam’s ineligibility if they advertised internally, the investigators found. Further, Mr Dorsey’s recommendation to staff the position on a bilingual non-imperative basis was not based on past experiences, past processes or attempts to fill positions with similar attributes. His decisions and recommendations were focused on Mr MacAdam’s eligibility. This approach was not in keeping with an expectation for fair and transparent decision making in an appointment process, the investigators concluded.
[42] Mr Estabrooks’ behaviour was found to constitute improper conduct that affected Mr MacAdam’s appointment. Mr Estabrooks knew that someone at the Minister’s office was interested in applying for the position, though he may not have known that it was Mr MacAdam. He researched the conditions in which minister’s staff can apply to internal appointment processes before recommending that an external process be used to ensure that the person at the Minister’s office could apply. The investigators concluded that Mr Estabrooks’ statements demonstrated that he was comfortable recommending an external process on the basis of the circumstances of one individual, that the focus of his recommendation was ensuring the eligibility of the individual at the Minister’s office, and that he participated in making decisions tailored to Mr MacAdam’s circumstances.
[43] Mme Collette and Mr LeBlanc’s actions in authorizing this process were also found to constitute improper behaviour that affected Mr MacAdam’s appointment to the DG Operations position.
[44] The final decision was issued by the Commission on August 10, 2012.
II. DECISION UNDER REVIEW [45] The Commission ordered that the Investigation Report be amended to delete a paragraph and a sentence and to relocate a second paragraph. Apart from those changes, the Commission accepted the Investigation Report. It recognized that there was no improper conduct on the part of the appointee, Mr MacAdam. However, improper conduct was found within the appointment process bringing its integrity into question. In accordance with its authority to take corrective action under s 66 of the PSEA, the Commission ordered that:
MacAdam’s appointment to the position of Director General, Operations – PEI, at the EX-2 group and level, be revoked;
Dorsey and Estabrooks complete two courses on leadership and ethics at the Canada School of Public Service, within six months of the Decision;
The President, ACOA not delegate or sub-delegate appointment and appointment related authorities to Dorsey or Estabrooks for a period of three years beginning on the date of the signing of the Decision; and
Dorsey not exercise any duties related to staffing for a period of three years beginning on the date of the signing of the Decision.
[46] On September 18, 2012, the Commission ordered that the implementation of the order in the Record of Decision be suspended pending the outcome of this judicial review application.
III. ISSUES: [47] Having considered the issues proposed by the parties, I conclude that they are as follows:
1. Was the Commission’s decision finding improper conduct in the appointment of Mr MacAdam reasonable?
2. Were the corrective actions ordered against Messrs MacAdam, Estabrooks and Dorsey reasonable?
IV. APPLICABLE LEGISLATION: [48] The relevant provisions of the PSEA are found in the Preamble, section 35.2 respecting the mobility of ministers’ staff members and in Part 5, sections 66 and 68.
Public Service Employment Act, SC 2003, c 22.
Loi sur l’emploi dans la fonction publique, LC 2003, c 22.
Preamble
Recognizing that
Préambule
Attendu :
[…]
[…]
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;
qu’il demeure avantageux pour le Canada de pouvoir compter sur une fonction publique non partisane et axée sur le mérite et que ces valeurs doivent être protégées de façon indépendante;
[…]
[…]
authority to make appointments to and within the public service has been vested in the Public Service Commission, which can delegate this authority to deputy heads;
que le pouvoir de faire des nominations à la fonction publique et au sein de celle-ci est conféré à la Commission de la fonction publique et que ce pouvoir peut être délégué aux administrateurs généraux;
those to whom this appointment authority is delegated must exercise it within a framework that ensures that they are accountable for its proper use to the Commission, which in turn is accountable to Parliament;
que ceux qui sont investis du pouvoir délégué de dotation doivent l’exercer dans un cadre exigeant qu’ils en rendent compte à la Commission, laquelle, à son tour, en rend compte au Parlement;
delegation of staffing authority should be to as low a level as possible within the public service, and should afford public service managers the flexibility necessary to staff, to manage and to lead their personnel to achieve results for Canadians; and
que le pouvoir de dotation devrait être délégué à l’échelon le plus bas possible dans la fonction publique pour que les gestionnaires disposent de la marge de manoeuvre dont ils ont besoin pour effectuer la dotation, et pour gérer et diriger leur personnel de manière à obtenir des résultats pour les Canadiens;
the Government of Canada is committed to a public service that embodies linguistic duality and that is characterized by fair, transparent employment practices, respect for employees, effective dialogue, and recourse aimed at resolving appointment issues;
que le gouvernement du Canada souscrit au principe d’une fonction publique qui incarne la dualité linguistique et qui se distingue par ses pratiques d’emploi équitables et transparentes, le respect de ses employés, sa volonté réelle de dialogue et ses mécanismes de recours destinés à résoudre les questions touchant les nominations,
[…]
[…]
Mobility — ministers’ staffs 35.2 A person who has been employed for at least three years in the office of a minister or of a person holding the recognized position of Leader of the Opposition in the Senate or Leader of the Opposition in the House of Commons, or in any of those offices successively,
• a) may, during a period of one year after they cease to be so employed, participate in an advertised appointment process for which the organizational criterion established under section 34 entitles all employees to be considered, as long as they meet the other criteria, if any, established under that section; and
• (b) has the right to make a complaint under section 77.
Mobilité — personnel du ministre 35.2 La personne qui a été, pendant au moins trois ans, employée dans le cabinet d’un ministre ou du titulaire des charges de leader de l’Opposition au Sénat ou de chef de l’Opposition à la Chambre des communes, ou employée successivement dans deux ou trois de ces cabinets :
• a) peut participer, pendant une période d’un an à partir de la date de sa cessation d’emploi, à tout processus de nomination annoncé pour lequel le critère organisationnel fixé en vertu de l’article 34 vise tous les fonctionnaires, pourvu qu’elle satisfasse aux autres critères fixés, le cas échéant, en vertu de cet article;
• b) a le droit de présenter une plainte en vertu de l’article 77.
PART 5
INVESTIGATIONS AND COMPLAINTS RELATING TO APPOINTMENTS
PARTIE 5
ENQUÊTES ET PLAINTES RELATIVES AUX NOMINATIONS
Investigation of Appointments by Commission
Enquêtes de la Commission sur les nominations
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
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) revoke the appointment or not make the appointment, as the case may be; and
a) révoquer la nomination ou ne pas faire la nomination, selon le cas;
(b) take any corrective action that it considers appropriate.
b) prendre les mesures correctives qu’elle estime indiquées.
[…]
[…]
Political influence
68. If it has reason to believe that an appointment or proposed appointment was not free from political influence, the Commission may investigate the appointment process and, if it is satisfied that the appointment or proposed appointment was not free from political influence, the Commission may
Nomination fondée sur des motifs d’ordre politique
68. La Commission peut mener une enquête si elle a des raisons de croire que la nomination ou proposition de nomination pourrait avoir résulté de l’exercice d’une influence politique; si elle est convaincue que la nomination ou proposition de nomination ne s’est pas faite indépendamment de toute influence politique, elle peut :
(a) revoke the appointment or not make the appointment, as the case may be; and
a) révoquer la nomination ou ne pas faire la nomination, selon le cas;
(b) take any corrective action that it considers appropriate.
b) prendre les mesures correctives qu’elle estime indiquées.
V. STANDARD OF REVIEW: [49] The parties are agreed that the standard of review applicable to the Commission’s decision is reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at paras 43-64; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland and Labrador Nurses] at paras 12-14, 18.
[50] I agree with the parties that the question has been satisfactorily determined by the prior jurisprudence and does not require a standard of review analysis. The interpretation and application of sections 66 and 68 of the PSEA are, among other provisions, at the heart of the Commission’s mandate and expertise: Seck v Canada (Attorney General), 2011 FC 1355 [Seck] at paras 10-11. As stated in Hughes v Canada (Attorney General), 2009 FC 573 at para 26, the scope of discretion given to the Commission, combined with the “discrete and special” nature of the Public Service regime, and the Commission's expertise within that regime signal that deference is due to decisions of the Commission. Accordingly, the decision is reviewable on the standard of reasonableness.
[51] According to the instructions provided by the Supreme Court in Dunsmuir, above, at para 47:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
VI. ARGUMENTS AND ANALYSIS: A. Was the Commission’s decision finding improper conduct in the appointment of Mr MacAdam reasonable? (1) Mr MacAdam’s arguments [52] Mr MacAdam contends that the Commission wrongly determined that improper conduct influenced his selection, contrary to the evidence that Mr Dorsey, Mr Estabrooks, Mr LeBlanc and Mme Collette acted with no improper intent. The Commission had previously found that it was necessary to consider the intent behind the actions taken in assessing whether there had been improper conduct in the selection process: Public Service Commission – Investigation Report Summary 2008 – Founded – Correctional Service of Canada (http://www.psc-cfp.gc.ca).
[53] In this instance, Mr MacAdam argues, the evidence demonstrated that ACOA managers sought to advertise the position as broadly as possible through a national external process to ensure wide access. This is supported in particular, he says, by Mr Dorsey’s evidence that recruiting bilingual candidates in PEI was challenging. It is also reflected in ACOA’s Human Resources Plan for 2010-2012 (the HR Plan) for that period, which reflects previous difficulties recruiting experienced candidates. The steps taken by Mr Dorsey, Mr Estabrooks, Mr LeBlanc and Mme Collette were consistent with a shared understanding of this factor. Any knowledge they may have had that he was likely to apply did not constitute improper conduct as he was an example of the type of candidate they sought to attract.
[54] Mr MacAdam submits that the establishment of essential criteria and assessment of qualifications was within Mr Dorsey’s authority as the staffing manager as this Court has previously recognized: Lavigne v Canada (Deputy Minister of Justice), 2009 FC 684 at paras 1-3, 70. In the result, he was the only qualified candidate who met all of the essential qualifications as determined by the staffing manager with the consensus of the two other members of the three-person selections panel.
[55] The Commission erred, Mr MacAdam submits, in concluding that the decision to post the DG, Operations position as bilingual non-imperative was due to Mr MacAdam’s insufficient French proficiency and that the use of the external process was intended to give him access to the appointment process. There is no evidence, he contends, that the responsible managers were aware of his language proficiency or, rather, lack thereof at the time.
[56] Further, the Commission unreasonably concluded, without any supporting evidence, Mr MacAdam submits, that his personal circumstances required an external posting. Mr MacAdam was entitled to participate in an internal process for one year after he had ceased to be employed in a Minister’s office. There was no evidence, he argues, that he was not prepared to resign his position in order to be eligible to apply. There is also no evidence, he says, as to whether Mr Dorsey, Mr Estabrooks, Mr LeBlanc or Mme Collette presumed, as a result of his interest, that he would not likely do so.
[57] In general, Mr MacAdam argues, the Commission relied on conjecture, assumptions, rumours and second-hand information relayed by individuals not directly involved in the staffing process to make findings of fact that cannot be supported by the evidence.
(2) Mr Dorsey’s Arguments [58] Mr Dorsey submits that the Commission erred in its interpretation of the term “improper conduct”. The term is not defined in the PSEA. The Commission described it as “…unsuitable behaviour, whether by action or inaction… in relation to an appointment process”. In Mr Dorsey’s view, a contextual and purposive analysis makes it clear that Parliament did not intend “improper conduct” to be a purely subjective assessment of “suitable behaviour” by the Commission. It was intended to capture conduct that was not necessarily wrong in law, but nonetheless contrary to the rules and guidelines established by the Commission pursuant to section 29(3) of the PSEA. Conduct contrary to these policies is improper. Here, there was no breach of the policies and, hence, no improper conduct.
Commission policies
29(3) The Commission may establish policies respecting the manner of making and revoking appointments and taking corrective action.
Lignes directrices
29(3) La Commission peut établir des lignes directrices sur la façon de faire et de révoquer les nominations et de prendre des mesures correctives.
[59] The Commission failed to consider, Mr Dorsey submits, the evidence that attracting candidates to PEI was a concern for ACOA and that senior positions had previously been staffed through external processes on a bilingual non-imperative basis. His own appointment was a case in point. Neither the PSEA nor its policies required that the position be staffed on a bilingual imperative basis. PEI is not a region designated as bilingual for language-of-work purposes, such as New Brunswick. Moreover, there were existing pools of candidates for the DG positions in the other Atlantic provinces. That was not the case for the position in PEI. Thus it was important to have the widest possible area of selection. Excluding Mr MacAdam, who had expressed an interest in joining the public service, would not have been reasonable. A political background should not exclude someone from consideration.
[60] The appointment process chosen by ACOA was one of many “options” available to it under the PSEA. While the Commission may have taken a different approach, Parliament has seen fit to authorize the delegation of appointment authority to persons other than the Commission and to set the threshold for subsequent intervention by the Commission at impropriety – not mere disagreement or unsuitability. It was unreasonable and improper for the Commission to assess the recommendation by Mr Dorsey on the basis of what it considered to be suitable in the circumstances.
[61] Mr Dorsey submits that the remedial authority of the Commission in section 66 of the PSEA is conditional upon a finding of “improper conduct that affected the selection of the person appointed”. This is reflected in the Guideline on Corrective Action and Revocation published by the Commission, which provides that in order to be actionable, the defect must affect the person selected for appointment (http://www.psc-cfp.gc.ca/plcy-pltq/