Kane v. Canada (Attorney General)

Kane v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2011-01-19
Neutral citation
2011 FCA 19
File numbers
A-394-09
Notes
Reported Decision
Decision Content
Federal Court of Appeal
Cour d'appel fédérale
Date: 20110119
Docket: A-394-09
Citation: 2011 FCA 19
CORAM: EVANS J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
ROBERT KANE
Appellant
and
ATTORNEY GENERAL OF CANADA
and PUBLIC SERVICE COMMISSION
Respondents
Heard at Ottawa, Ontario, on October 20, 2010.
Judgment delivered at Ottawa, Ontario, on January 19, 2011.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DAWSON J.A.
DISSENTING REASONS BY: STRATAS J.A.
Federal Court of Appeal
Cour d'appel fédérale
Date: 20110119
Docket: A-394-09
Citation: 2011 FCA 19
CORAM: EVANS J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
ROBERT KANE
Appellant
and
ATTORNEY GENERAL OF CANADA
and PUBLIC SERVICE COMMISSION
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1] It is an essential precept of the federal public service that appointments are based on merit. The merit principle as previously understood was modified by the Public Service Employment Act, S.C. 2003, c. 22 (PSEA), part of a package of legislative measures to modernize employment and labour relations in the public sector.
[2] In particular, the PSEA removes the previous statutory distinction between comparative and individual merit, and confers more discretion on management to appoint on the basis that a person is qualified for an appointment, without having to consider whether he or she is necessarily the best qualified. In this way, the PSEA aims to introduce more flexibility and reduce delay in federal public service staffing and appointment decisions.
[3] A key distinction now made by the PSEA is between an advertised and a non-advertised internal appointment process. Thus, section 33 confers an unencumbered discretion on the Public Service Commission (Commission), and its delegates, to decide whether to make an appointment on the basis of an advertised or a non-advertised internal appointment process. A disappointed candidate may complain to the Public Service Staffing Tribunal (Tribunal) of an abuse of authority by the employer in the exercise of this discretion.
[4] Although Robert Kane had been a federal public servant for thirty years, he was not appointed to the position that he was occupying in a temporary capacity. He complained to the Tribunal that the Deputy Head of Service Canada, as part of the Department of Human Resources and Social Development (Deputy Head), had abused her authority by making the appointment from a pool of candidates, selected as a result of an advertised internal competition, and by not appointing him. He alleged that the decision to advertise was based on the erroneous view that the position in question was newly created, whereas in fact, he maintained, it was a reclassification of the position that he had occupied.
[5] The Tribunal dismissed Mr Kane’s complaint in a decision dated August 3, 2007: 2007 PSST 0035. It concluded that, given the breadth of the discretion conferred by section 33 over the appointment process, whether the position was newly created or reclassified was irrelevant. Mr Kane’s application for judicial review to set aside the Tribunal’s decision was dismissed by the Federal Court: 2009 FC 740. He appeals that decision to this Court.
[6] The principal question to be decided in this appeal is whether it was unreasonable for the Tribunal to proceed on the assumption that the choice of an internal appointment process on the basis of an incorrect fact cannot constitute an abuse of authority. In my view, for the employer to base an exercise of discretion on an incorrect fact is prima facie unreasonable and can thus constitute an abuse of authority, if the fact in question is material and relevant. Thus, in assessing whether the employer’s decision in this case was an abuse of authority, the Tribunal cannot ignore Mr Kane’s complaint that the employer based its decision to advertise on an erroneous finding that the position was new, a matter which section 33 permits, but does not require, the employer to consider.
[7] Accordingly, I would allow the appeal and remit the matter to the Tribunal for re-determination.
B. FACTUAL BACKGROUND
[8] In September 2005, the Government of Canada created Service Canada within the Department of Human Resources and Social Development. Its purpose was to facilitate Canadians’ access to federal services and benefits through the provision of “one-stop shopping”. In preparation for the launch of Service Canada, the Newfoundland and Labrador Region had announced in May of that year an interim organizational structure to provide for region-wide business line management, and set up an In-Person and Community Services (IPCS) business line which would be supported by a new regional unit.
[9] On August 30, 2005, the position of Service Delivery Manager for the IPCS business line was created at the PM-05 level. On September 1, 2005, Mr Kane was deployed in a lateral move to fill the position, without a competition. He was given only a generic work description, from which he was asked to identify the duties and functions of the position for inclusion in an up-to-date work description.
[10] On February 14, 2006, the Regional Management Board (RMB) approved an organizational structure for the Regional Headquarters office, including a Regional Manager position for the IPCS business line at the PM-06 level, supported by a staff of six, including two PM-05 positions. The PM-06 Regional Manager position would replace the PM-05 Service Delivery Manager position occupied by Mr Kane, who was asked to continue in this position pending the classification of the Regional Manager position.
[11] At about the same time, an advertised appointment process was started to establish a pre-qualified pool of candidates to fill these and other PM-06 and PM-05 positions. Early in February 2006, Mr Kane applied to enter the competition.
[12] On March 1, 2006, the RMB informed employees that, if the Regional Manager position was classified at the PM-06 level, it would be filled from the pre-qualified pool of candidates selected after the internal competition. On May 1, 2006, Mr Kane was advised that he would not be considered further for a PM-06 position, because he had failed one component of the standardized tests taken by candidates for inclusion in the pre-qualified pool.
[13] On June 15, 2006, the classification review process concluded that the Regional Manager position should be classified at the PM-06 level. Mr Kane agreed to fill the position in an acting capacity. He testified that the duties and functions of the Regional Manager position were not materially different from those that he had been performing since his deployment to the IPCS business management line for Newfoundland and Labrador in September 2005.
[14] Following the classification of the position of Regional Manager at the PM-06 level, Mr Kane claimed a retroactive PM-06 salary increase, on the ground that he had been performing the functions and duties of Regional Manager during his entire deployment. He was granted the increase, not to September 2005 as he requested, but to February 14, 2006, when the RMB decided to create the Regional Manager position at the PM-06 level.
[15] In August 2006, Mr Kane was offered a PM-05 position in IPCS after his previous position had been declared redundant. He was also asked to continue as acting Regional Manager until either the end of September or the position was filled, whichever happened first. On September 11, 2006, he filed his complaint of abuse of authority with the Tribunal on the appointment of the Regional Manager.
C. LEGISLATIVE FRAMEWORK
[16] The nature of the merit principle before the enactment of the PSEA is indicated by the following provisions of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the former Act). Merit was normally, but not always, comparative, and competitions were the norm.
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.
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.
[17] The Public Service Employment Regulations, 2000, SOR/2000-80, made under the former Act, set out the circumstances in which a selection could be made on individual rather than comparative merit pursuant to subsection 10(2) of the former Act:
5. (2) A selection referred to in subsection 10(2) of the Act may be made in any of the following circumstances:
…
(b) when an employee is to be appointed to their reclassified position and
(i) the position has been reclassified as a result of a classification audit or grievance,
(ii) the position is one of a group of similar occupied positions in the same occupational group and level within the same part of an organization that have all been reclassified to the same occupational group and level, or
(iii) there are no other similar occupied positions in the same occupational group and level within the same part of the organization;
5. (2) La sélection au mérite visée au paragraphe 10(2) de la Loi peut se faire dans l'une ou l'autre des circonstances suivantes :
[…]
b) la nomination d'un fonctionnaire à son poste après reclassification, si l'une des situations suivantes existe :
(i) la reclassification résulte d'une vérification ou d'un grief en matière de classification,
(ii) le poste fait partie d'un groupe de postes semblables, qui sont pourvus, qui sont des mêmes groupe et niveau professionnels au sein du même secteur de l'organisation et qui ont tous été reclassifiés aux mêmes groupe et niveau professionnels,
(iii) il n'y a aucun autre poste semblable qui est pourvu et qui est des mêmes groupe et niveau professionnels au sein du même secteur de l'organisation;
[18] The current PSEA sets out a version of the merit principle that emphasizes individual, rather than comparative merit.
30. (1) Appointments by the Commission to or from within the public service shall be made on the basis of merit and must be free from political influence.
(2) An appointment is made on the basis of merit when
(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and
…
(4) The Commission is not required to consider more than one person in order for an appointment to be made on the basis of merit.
30. (1) Les nominations – internes ou externes – à la fonction publique faites par la Commission sont fondées sur le mérite et sont indépendantes de toute influence politique.
(2) Une nomination est fondée sur le mérite lorsque les conditions suivantes sont réunies :
a) selon la Commission, la personne à nommer possède les qualifications essentielles – notamment la compétence dans les langues officielles – établies par l’administrateur général pour le travail à accomplir;
[…]
(4) La Commission n’est pas tenue de prendre en compte plus d’une personne pour faire une nomination fondée sur le mérite.
[19] In order to achieve more flexibility in staffing and appointment decisions, the PSEA confers an unencumbered discretion on the Commission, and its delegates, in selecting between advertised and non-advertised appointment processes, as well as in the design of instruments for assessing competence.
33. In making an appointment, the Commission may use an advertised or non-advertised appointment process
…
36. In making an appointment, the Commission may use any assessment method, such as a review of past performance and accomplishments, interviews and examinations, that it considers appropriate to determine whether a person meets the qualifications referred to in paragraph 30(2)(a) …
33. La Commission peut, en vue d’une nomination, avoir recours à un processus de nomination annoncé ou à un processus de nomination non annoncé.
[…]
36. La Commission peut avoir recours à toute méthode d’évaluation – notamment prise en compte des réalisations et du rendement antérieur, examens ou entrevues – qu’elle estime indiquée pour décider si une personne possède les qualifications visées à l’alinéa 30(2)a) …
[20] The PSEA creates administrative institutions and mechanisms for dealing with complaints about staffing and appointment decisions. For present purposes, the Public Service Staffing Tribunal is of particular importance.
88. (1) The Public Service Staffing Tribunal is continued, consisting of between five and seven permanent members appointed by the Governor in Council and any temporary members that are appointed under section 90.
(2) The mandate of the Tribunal is to consider and dispose of complaints made under … sections … 77… .
(3) In order to be eligible to hold office as a member, a person must
…
(b) have knowledge of or experience in employment matters in the public sector.
…
95.
…
(2) The Chairperson may retain on a temporary basis the services of mediators and other experts or persons having technical or special knowledge to assist the Tribunal in an advisory capacity and, subject to the approval of the Treasury Board, fix their remuneration.
…
98. (1) A complaint shall be determined by a single member of the Tribunal, who shall proceed as informally and expeditiously as possible.
….
99.
…
(3) The Tribunal may decide a complaint without holding an oral hearing.
88. (1) Est maintenu le Tribunal de la dotation de la fonction publique, composé de cinq à sept membres titulaires nommés par le gouverneur en conseil et des membres vacataires nommés en vertu de l’article 90.
(2) Le Tribunal a pour mission d’instruire les plaintes présentées en vertu … ou des articles … 77 … .
(3) Il faut, pour être membre du Tribunal :
[…]
b) avoir de l’expérience ou des connaissances en matière d’emploi dans le secteur public.
[…]
95.
[…]
(2) Le président peut retenir temporairement les services de médiateurs et d’autres experts chargés d’assister le Tribunal à titre consultatif, et, sous réserve de l’approbation du Conseil du Trésor, fixer leur rémunération.
[…]
98. (1) Les plaintes sont instruites par un membre agissant seul qui procède, dans la mesure du possible, sans formalisme et avec célérité.
[…]
99.
[…]
(3) Le Tribunal peut statuer sur une plainte sans tenir d’audience.
[21] Employees may complain to the Tribunal that there has been an abuse of authority in the making of specified decisions. The following is the provision relevant to this appeal.
77. (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may ... make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of
…
(b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal
appointment process; or
…
77. (1) Lorsque la Commission a fait une proposition de nomination ou une nomination dans le cadre d’un processus de nomination interne, la personne qui est dans la zone de recours visée au paragraphe (2) peut … présenter à celui-ci une plainte selon laquelle elle n’a pas été nommée ou fait l’objet d’une proposition de nomination pour l’une ou l’autre des raisons suivantes :
[...]
b) abus de pouvoir de la part de la Commission du fait qu’elle a choisi un processus de nomination interne annoncé ou
non annoncé, selon le cas ;
[…]
[22] The PSEA does not provide a comprehensive definition of “abuse of authority”. However, it does contain the following provision “for greater certainty”.
2. (4) For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism.
2. (4) Il est entendu que, pour l’application de la présente loi, on entend notamment par « abus de pouvoir » la mauvaise foi et le favoritisme personnel.
[23] The PSEA sets out the remedial powers of the Tribunal when it upholds a complaint. They do not include a power to order either the Commission or a deputy head to make a new appointment or to conduct a new appointment process.
81. (1) If the Tribunal finds a complaint under section 77 to be substantiated, the Tribunal may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Tribunal considers appropriate.
…
82. The Tribunal may not order the Commission to make an appointment or to conduct a new appointment process.
81. (1) S’il juge la plainte fondée, le Tribunal peut ordonner à la Commission ou à l’administrateur général de révoquer la nomination ou de ne pas faire la nomination, selon le cas, et de prendre les mesures correctives qu’il estime indiquées.
[…]
82. Le Tribunal ne peut ordonner à la Commission de faire une nomination ou d’entreprendre un nouveau processus de nomination.
[24] Decisions of the Tribunal are protected by a preclusive clause.
102. (1) Every decision of the Tribunal is final and may not be questioned or reviewed in any court.
(2) No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Tribunal in relation to a complaint.
102. (1) La décision du Tribunal est définitive et n’est pas susceptible d’examen ou de révision devant un autre tribunal.
(2) Il n’est admis aucun recours ni aucune décision judiciaire — notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto — visant à contester, réviser, empêcher ou limiter l’action du Tribunal en ce qui touche une plainte
[25] In addition to the right of employees to complain to the Tribunal of abuse of authority, employees who are informed during an internal appointment process that they have been eliminated from consideration for an appointment may ask the Commission to discuss that decision with them. As a result of that informal discussion, or otherwise, the Commission, or the deputy head to whom the power to make internal appointments has been delegated, may revoke an internal appointment and take corrective action, on being satisfied that an error, an omission, or improper conduct affected an appointment.
47. Where a person is informed by the Commission, at any stage of an internal appointment process, that the person has been eliminated from consideration for appointment, the Commission may, at that person’s request, informally discuss its decision with that person.
15. (3) Where the Commission authorizes a deputy head to make appointments pursuant to an internal appointment process, the authorization must include the power to revoke those appointments and to take corrective action whenever the deputy head, after investigation, is satisfied that an error, an omission or improper conduct affected the selection of a person for appointment.
67. (1) The Commission may investigate an internal appointment process, other than one conducted by a deputy head acting under subsection 15(1), and, if it is satisfied 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.
…
47. À toute étape du processus de nomination interne, la Commission peut, sur demande, discuter de façon informelle de sa décision avec les personnes qui sont informées que leur candidature n’a pas été retenue.
15. (3) Dans les cas où la Commission autorise un administrateur général à exercer le pouvoir de faire des nominations dans le cadre d’un processus de nomination interne, l’autorisation doit comprendre le pouvoir de révoquer ces nominations — et de prendre des mesures correctives à leur égard — dans les cas où, après avoir mené une enquête, il est convaincu qu’une erreur, une omission ou une conduite irrégulière a influé sur le choix de la personne nommée.
67. (1) La Commission peut mener une enquête sur tout processus de nomination interne, sauf dans le cas d’un processus de nomination entrepris par l’administrateur général dans le cadre du paragraphe 15(1); si elle est convaincue 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.
[…]
D. DECISION OF THE TRIBUNAL
[26] The Tribunal stated that, because of the broad discretion conferred by section 33, a complaint of abuse of authority could not be based simply on the fact that a position had been filled after an advertised internal appointment process. It noted that the RMB had decided to adopt an advertised process before both the classification review of the Regional Manager position had been completed, and the results of the standardized tests were known.
[27] The Tribunal agreed with the employer that neither the PSEA nor any applicable policy mandates the internal appointment process to be followed, regardless of whether the position to be filled is newly created or a reclassified existing position. Further, unlike the former Act, section 33 explicitly confers broad discretion over the selection of an advertised or a non-advertised appointment process. Hence, the jurisprudence arising from the former Act is not relevant.
[28] The Public Service Human Resources Management Agency of Canada Guidelines (Guidelines) deal with, among other things, the criteria for distinguishing between a new and a reclassified position. The Tribunal held that these are not law, because they were not made in the exercise of a delegated statutory power. Hence, it wrote, even if the Commission had based its decision to advertise on a misinterpretation of the Guidelines, its decision would not constitute an abuse of authority as being erroneous in law, and therefore, presumably, not an abuse of discretion.
[29] As for Mr Kane’s complaint that he was not appointed Regional Manager, the Tribunal stated that section 36 of the PSEA gives the Commission an unfettered discretion to choose the assessment method that it considers appropriate to determine if a person is qualified for a position. Mr Kane was not appointed because he failed one of the standardized tests taken by candidates for a PM-06 position. Accordingly, the Tribunal concluded, even if the decision to advertise constituted an abuse of authority, he had failed to establish that it caused him not to be appointed.
E. DECISION OF THE FEDERAL COURT
[30] The Judge identified the principal substantive issue as whether the Tribunal had erred in law in regarding as irrelevant to Mr Kane’s complaint of abuse of authority the characterization of the PM-06 Regional Manager position as either new or reclassified.
[31] First, though, she held on the basis of Dunsmuir v. New Brunswick, 2008 SCC 9, [2009] 1 S.C.R. 190 (Dunsmuir), that unreasonableness was the applicable standard of review. She noted that: the Tribunal’s decisions are protected by a strong preclusive clause; the Tribunal is a specialized body created to adjudicate public service employment disputes; and whether an abuse of authority had occurred was essentially a factual question within the expertise of the Tribunal.
[32] After noting the shift in the PSEA from comparative to individual merit, and the absence of any statutory criteria limiting the choice of an advertised or a non-advertised internal appointment process, the Judge discounted the relevance of jurisprudence arising under the former Act. She said (at para. 40):
The question is not whether the Regional Manager PM-06 position was properly characterized as new rather than reclassified but whether the employer abused its authority in determining that the position would be staffed by an advertised process following the creation of a pool of candidates.
[33] She found that Mr Kane had not proved that it was the practice in the Newfoundland and Labrador region to appoint incumbents to their positions after they had been reclassified, and that the RMB decided to fill the Regional Manager position through an advertised process before it knew either the result of the classification review or that Mr Kane had not passed a standardized test.
[34] In view of the evidence and the statutory framework, the Judge was not persuaded that the Tribunal’s decision was unreasonable, and dismissed Mr Kane’s application for judicial review.
F. ISSUES AND ANALYSIS
[35] Three issues must be decided in this appeal. First, what is the standard of review applicable to the Tribunal’s decision? Second, did the Tribunal err in deciding that the decision to fill the Regional Manager position on the basis of an advertised internal appointment process was not an abuse of authority? Third, if there was an abuse of authority in the choice of an advertised process, did the Tribunal err in finding that Mr Kane had failed to prove that the decision not to appoint him as Regional Manager was caused by the abuse of authority?
Issue 1: Standard of review
[36] The questions in dispute in this appeal principally concern the scope of the term “abuse of authority” in section 77 of the PSEA and its application to the facts of this case. I see no basis for departing from the presumption established in Dunsmuir (at paras. 53-54) that specialized tribunals’ interpretation and application of their enabling statutes are reviewable on a standard of reasonableness.
[37] Experience or knowledge of employment matters in the public sector is a qualification for appointment to the Tribunal: PSEA, paragraph 88(3)(b). Thus, while undoubtedly having a legal aspect, the questions in dispute also concern the internal appointment process to fill a position, and are thus within the scope of the Tribunal’s expertise. I also note in this context that subsection 95(2) empowers the Chairperson to retain experts as advisors to the Tribunal, including, presumably, lawyers.
[38] The existence of finality and strong privative clauses in section 102 puts the matter beyond doubt: Dunsmuir at para. 52. The effect of the “no certiorari” provision in subsection 102(2) is to exclude judicial review on the “non-jurisdictional” grounds set out in subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7. Consequently, since no statutory adjudicator is authorized to make unreasonable decisions, the Tribunal’s decision, if unreasonable, may be set aside under paragraph 18.1(4)(a) as beyond its jurisdiction.
[39] Unlike the Federal Court in Lavigne v. Canada (Justice), 2009 FC 684, 352 F.T.R. 269 at para. 46 (Lavigne), I do not think that the term abuse of authority in section 77 raises a question of law “of central importance to the legal system” and outside the scope of the Tribunal’s expertise: the term merely defines conduct on which a federal public service employee may base a complaint to the Tribunal about specified employment decisions. That its scope may incidentally determine whether an employee can only pursue a particular complaint directly in the Federal Court through an application for judicial review, rather than through the Tribunal, does not, in my view, elevate it to a question of “central importance” to the Canadian legal system.
[40] Consequently, I agree with the Judge’s conclusion that reasonableness is the applicable standard of review in this case.
Issue 2: Was it unreasonable for the Tribunal to decide that the selection of an advertised internal appointment process for filling the position of Regional Manager could not be an abuse of authority?
[41] This issue needs to be unpacked because it involves four related inquiries: the basis of Mr Kane’s complaint of abuse of authority; the relevance of administrative guidelines and policy in the employer’s decision-making; the scope of the term “abuse of authority”; and the reasonableness of the Tribunal’s conclusion that Mr Kane’s complaint could not constitute an abuse of authority.
(i) Mr Kane’s complaint
[42] Mr Kane complained to the Tribunal under paragraph 77(1)(b) that, on the facts of his case, the employer abused its authority by advertising the Regional Manager position, and by not appointing him to it. The Tribunal may only grant a remedy for breach of paragraph 77(1)(b) after determining that the complainant has proved that the Commission or its delegates committed an abuse of authority in choosing between an advertised and a non-advertised internal appointment process under section 33.
[43] Mr Kane argues that the employer treated the “newness” of the Regional Manager position as relevant to the decision to advertise. However, he says, the position was not new, but his old position reclassified. For the employer to base an exercise of discretion under section 33 on a relevant fact, when that fact does not exist, can constitute an abuse of authority. Administrative decisions based on unreasonable findings of material fact are an arbitrary exercise of the statutory power under which they are made. Hence, Mr Kane submits, for the Tribunal to conclude that such a decision was incapable of amounting to an abuse of authority would be unreasonable.
(ii) Statutory discretion, guidelines and policy
[44] The PSEA does not link the choice of internal appointment process under section 33 to whether a position is new or reclassified. Unlike the former Act, section 33 does not require the employer to take into account whether a position is new or reclassified before deciding which internal appointment process to adopt. Nonetheless, the breadth of the discretion conferred by section 33 is such that whether a position is new is a factor that the employer may consider. The newness or otherwise of a position is thus relevant to the exercise of the statutory discretion conferred, in the sense that it is a factor that the employer may lawfully take into account, but is not one that it must take into account if the section 33 discretion is to be exercised lawfully.
[45] That the newness of a position is relevant in the above sense is underlined by the Guidelines and a Service Canada Policy (Criteria for Non-Advertised Appointment Processes Policy) (Policy), which point decision-makers to this consideration when exercising their discretion under section 33. The Guidelines were promulgated before the PSEA was enacted, but were in force when the decision was taken to advertise the Regional Manager position. Counsel did not suggest that either the Guidelines, or the subsequently issued Policy, were unlawful as being inconsistent with the PSEA, or that it would be improper in this case for the employer to base an exercise of discretion under section 33 on them.
[46] Although primarily concerned with job classification, the Guidelines state (Appeal Book, p. 123):
The appointment process will differ depending on whether the classification action involves a reclassification or the establishment of a new position. Human resources advisors and managers should consult with their staffing advisors in advance of the classification action in order to understand the consequences of the proposed appointment process.
[emphasis added]
Le processus de nomination utilisé sera différent selon que la mesure de classification se rapporte à une reclassification ou à l’établissement d’un nouveau poste. Les conseillers en ressources humaines devraient consulter leurs conseillers en dotation et les gestionnaires avant de prendre la mesure de classification afin de comprendre les conséquences du processus de nomination proposé.
[non souligné dans l’original]
[47] The Policy came into effect with the PSEA in order to provide guidance to deputy heads and managers on the exercise of discretion under section 33. It states (Appeal Book, p. 329):
The objective of the policy is to provide a common framework and objective criteria to guide managers and sub-delegated officials in deciding when to use a non-advertised appointment process to conduct staffing. In deciding between a non-advertised and advertised process they must respect the appointment values of fairness, access and transparency. The decision must respond to the need for flexibility, efficiency and affordability in staffing and support Service Canada in meeting its operational requirements.
L’objectif de la ligne directrice vise à offrir aux gestionnaires et aux cadres subdélégués un cadre commun et des critères pour décider quand utiliser un processus de nomination non annoncé. Le choix du processus doit être fait de manière à respecter les valeurs liées à l’équité, l’accessibilité et la transparence dans les nominations tout en répondant aux besoins de souplesse, d’efficacité et d’économie et à aider l’organisation à répondre à ses besoins opérationnels.
[48] In other words, the Policy is aimed at ensuring a degree of consistency, coherence, and accountability in managerial decision-making under section 33. Thus, the Policy sets out (Appeal Book, p. 330) “circumstances in which a non-advertised process might be justified.” The criteria for non-advertised appointment processes include (Appeal Book, p. 335):
ΠAppointment of an employee following the reclassification of their position in accordance with the policies and guidelines of the Public Service Human Resources Management Agency of Canada (PSHRMAC) and the PSC.
Œ Nomination d’un employé à la suite de la reclassification de son poste en vertu des politiques et des lignes directrices de l’Agence de gestion des ressources humaines de la fonction publique du Canada (AGRHFPC) et de la CFP.
[49] In my view, these extracts are an acknowledgement by the employer that the newness of a position can be relevant to the exercise of the broad discretion under section 33. This is the important point for the purpose of this appeal. Indeed, the Guidelines go further by stating that the appointment process will differ depending on how the position is characterized. The Policy, however, is more nuanced.
[50] Whether a failure to have regard to the Guidelines or Policy (including their provisions on the appointment process consequences of characterizing a position as new or reclassified) would constitute an abuse of authority is not a question that arises here. As the following extracts from the record show, the employer regarded the Regional Manager position as new and, consistently with the Guidelines and Policy, took this consideration into account in deciding to advertise.
[51] In a memorandum of March 1, 2006, the regional Executive Head, writing on behalf of the RMB, advised staff in the Newfoundland and Labrador region that the position of Regional Manager, IPCS, was being sent for classification review and, if it was classified at the PM-06 level, it would be filled from the pool of candidates who were successful in the competition then in progress. The classification of the position at the PM-06 level was confirmed on June 15, 2006.
[52] On June 20, 2006, the Director of IPCS for the region had advised Mr Kane (Appeal Book, p. 204) that “the new PM 6 position has been established” (emphasis added), and that approval had been given for him to act in the position until it was filled on a permanent basis.
[53] On August 9, 2006, the Director responded as follows to a request by Mr Kane for clarification of the method of staffing for the Regional Manager position (Appeal Book, p. 206):
There is no doubt that the work you did during the past several months was significant and contributed greatly to the organizational structure that was recommended and approved at the February 14 RMB meeting. Having said that, approval to staff the manager’s role at the PM 6 position required the establishment of a new position at that level. Since it was a new position at a higher level, it was deemed fair and appropriate to provide all managers with the opportunity to compete versus making an appointment via non-advertised process. (Emphasis added)
[54] Further, in a letter to the Tribunal, dated October 17, 2006, an Assistant Deputy Minister, People and Culture Branch, Service Canada, wrote (Appeal Book, p. 210):
The respondent followed the above mentioned Guidelines for Reclassification and deemed the position to be a new position. In this particular circumstance, the Director responsible for the unit decided to run an internal advertised process to allow employees the opportunity to apply.
[55] The principal justification given by the employer for advertising was that the position was new. Accordingly, if Mr Kane could establish that there was no rational basis on which the Regional Manager position at the PM-06 level could be classified as “new”, rather than “reclassified”, he might succeed in demonstrating that the decision to use an advertised appointment process was arbitrary. This is because the decision would have been based in large part on an unreasonable conclusion about a fact relevant to the exercise of discretion under section 33.
[56] Like the Guidelines, the Policy is not binding in law, and management is entitled to depart from it. Indeed, the Policy itself purports only “to provide a common framework and objective criteria to guide managers” in deciding when to use a non-advertised appointment process, and is far from prescriptive. Nonetheless, its function is to promote “fairness, access and transparency” in decision-making under section 33 (Appeal Book, p. 329). Since fairness includes consistency and treating like alike, the objectives of the Guidelines and Policy will not be achieved if decisions made in accordance with them, but based on unreasonable findings of relevant facts, are allowed to stand.
(iii) Abuse of authority
[57] Counsel for the respondents argued that, although not defined in the PSEA, the term “abuse of authority” in section 77 has a narrow scope. It is limited to serious misconduct that carries a moral stigma, and requires a mental element akin to that in the tort of misfeasance in public office. Thus, the respondents submit in their memorandum of fact and law (at para. 62) that “abuse of authority” connotes
… an intentional element of bad faith, personal favouritism, discrimination, corruption, serious carelessness or recklessness, gross negligence or misfeasance of a similar egregious nature.
[58] The respondents reject the position taken by the Tribunal in many cases: namely, that the concept of abuse of discretion in administrative law, particularly as explained by David Phillip Jones and Anne S