Canada (Attorney General) v. Shakov

Canada (Attorney General) v. Shakov
Court (s) Database
Federal Court of Appeal Decisions
Date
2017-12-19
Neutral citation
2017 FCA 250
File numbers
A-41-16
Decision Content
Date: 20171219
Docket: A-41-16
Citation: 2017 FCA 250
CORAM:
STRATAS J.A.
SCOTT J.A.
GLEASON J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
OLEG SHAKOV, THE OFFICE OF THE COMMISSIONER FOR FEDERAL JUDICIAL AFFAIRS, MARC GIROUX and
NIKKI CLEMENHAGEN
Respondents
Heard at Ottawa, Ontario, on June 13, 2017.
Judgment delivered at Ottawa, Ontario, on December 19, 2017.
REASONS FOR JUDGMENT BY:
GLEASON J.A.
CONCURRED IN BY:
SCOTT J.A.
DISSENTING REASONS BY:
STRATAS J.A.
Date: 20171219
Docket: A-41-16
Citation: 2017 FCA 250
CORAM:
STRATAS J.A.
SCOTT J.A.
GLEASON J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
OLEG SHAKOV, THE OFFICE OF THE COMMISSIONER FOR FEDERAL JUDICIAL AFFAIRS, MARC GIROUX and
NIKKI CLEMENHAGEN
Respondents
REASONS FOR JUDGMENT
GLEASON J.A.
[1] This is an appeal brought by the Attorney General of Canada from the judgments of the Federal Court (per Tremblay-Lamer, J.) in Oleg Shakov v. Attorney General of Canada, 2015 FC 1416 in which the Federal Court allowed two applications for judicial review from the decision of the Public Service Commission (the PSC) issued November 3, 2014 (2014-089-IB). In the decision in question, the PSC revoked the term appointment of the respondent, Oleg Shakov, to the position of Director of the International Programs Division of the respondent Office of the Commissioner for Federal Judicial Affairs (the FJA), removed the authority of the respondents, Marc Giroux and Nikki Clemenhagen, to make further appointments and ordered that they undergo remedial staffing training.
[2] For the reasons that follow, I would allow this appeal in part and would vary the judgment of the Federal Court to remit to the PSC certain issues for re-determination in accordance with these reasons. I would award Mr. Shakov his costs in the agreed-upon amount of $4,500.00 and in the Court below, but would make no award in favour of the other parties as their success on the various issues is divided.
I. Background [3] The FJA is a federal government department located in the National Capital Region. It is tasked with providing administrative services in respect of the federally-appointed judiciary to assist in ensuring its independence from the Department of Justice. Since 1996, the FJA has included an International Programs Division that facilitates international exchanges for judges and participates in judicial and court reform projects abroad.
[4] By 2011, the FJA’s International Programs Division, which received funding exclusively from external sources, was lagging, with only a few programs running. In addition, in April of that year, the Division allowed important funding from the Canadian International Development Agency (CIDA) to lapse. Shortly thereafter, the Director of the Division requested a transfer to another role and moved out of the position.
[5] Faced with the need to replace the Director quickly so as to reinvigorate the Division, the Acting Commissioner of the FJA, Mr. Giroux, and the FJA’s Director, Compensation, Benefits and Human Resources, Ms. Clemenhagen, decided to appoint Mr. Shakov on an interim basis to head the Division as the FJA had no funding to re-staff the position on a permanent basis. They believed that Mr. Shakov had the skills and knowledge required to quickly and effectively assume the responsibilities of the Director in light of his several years’ experience working as a consultant in the Division. However, his French language proficiency was limited.
[6] Mr. Giroux and Ms. Clemenhagen decided that it was essential to fill the Director role quickly or there was a real risk that the International Programs Division would collapse. They also felt that it would take too long to locate another suitable candidate and to have that candidate up and running in the Director position if it were to be staffed via a competitive process. They thus believed that the only viable option was to appoint Mr. Shakov on an interim basis to get the Division back on a more stable footing. They determined that the skill set required for the position was rare and that few public servants would possess the knowledge and qualifications essential for the Director position as the role of the Division is unique in the federal government. There is no evidence in the record to indicate that Mr. Giroux and Ms. Clemenhagen were mistaken in these beliefs.
[7] Mr. Shakov was working as a consultant for several different organizations, including the FJA, when he was approached by Mr. Giroux and Ms. Clemenhagen about accepting a term appointment as Director of the FJA. Mr. Shakov was initially reluctant to accept such an appointment as it would have meant a substantial drop in his revenue. However, he eventually agreed to accept the role in light of the troubled state of the FJA’s International Programs Division and his belief that he could assist in ensuring it avoided demise. As he had previously done a substantial amount of work for the Division as a consultant, he shared the other individual respondents’ conviction that the Division should not be allowed to collapse.
[8] Mr. Shakov’s initial appointment was for a one-year term and was made on a non-advertised basis. The position was classified at the PM-06 level, a classification the appellant conceded is typically below the executive level in the federal public service.
[9] The linguistic profile for the term position was set as “English Essential”, requiring only that the successful incumbent be fluent in English even though the position had previously been classified as a bilingual one. At the time, there were no permanent francophone employees working in the Division and all communications outside the FJA that the Director was required to undertake occurred in English (or Ukrainian, which Mr. Shakov spoke). It appears that there was a term employee in the Division for a few months in 2011, whose mother tongue might have been French, but she was bilingual and did not ever express the desire to be supervised in French. However, all the subordinate positions but one in the Division were classified as bilingual and management meetings at the FJA were typically conducted in both English and French.
[10] Both Ms. Clemenhagen and Mr. Giroux believed that the selection of English Essential as the linguistic profile for the Director position was appropriate and allowable in light of the linguistic needs of the employees in the Division and the fact that the work was conducted in English or Ukrainian. However, a junior human resources manager felt otherwise and wrote a memo to file indicating that she felt the position should have been classified as a bilingual one. There is no indication that she shared her views with Mr. Giroux.
[11] At the end of the initial one-year term, the FJA renewed Mr. Shakov’s term appointment for a further year.
[12] Over the period from May 2011 to September 2012, Mr. Shakov worked at improving his command of the French language. In September 2012, he took and passed the federal public service second language tests, obtaining a rating of “BBB”, the minimum rating for a bilingual supervisory position in the federal public service.
[13] In December 2012, Mr. Shakov was internally appointed to an indeterminate position as Head of International Projects within FJA, as the Director position was renamed. His eligibility for this internal appointment was premised on his holding an internal position at the FJA. This time, the linguistic profile of the position was set as “BBB”, which Mr. Shakov met.
[14] The PSC conducted an audit of the FJA’s external staffing action in appointing Mr. Shakov to the term position. In a report sent to the respondents on July 11, 2014 (File number 2013-FJA-00011.16335), the PSC investigator concluded that the FJA, Mr. Giroux and Ms. Clemenhagen had engaged in “unsuitable behaviour that amount (sic) to improper conduct” (Appeal Book, Volume 1, page 142), within the meaning of section 66 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (PSEA), by reason of having set the language profile of the term position as requiring English only and in having decided to staff the position through an unadvertised process.
[15] The investigator concluded that the linguistic profile for the position had been improperly tailored to result in Mr. Shakov’s appointment and that the other respondents had not provided an adequate explanation for staffing the position without a competition. On the basis of her conclusions, the investigator recommended that Mr. Giroux and Ms. Clemenhagen both be enrolled in mandatory remedial staffing training, that their delegated authority to make appointments be revoked until the completion of such training and that Mr. Shakov’s term appointment be retroactively revoked, effective the last day he held the term position.
[16] In a Record of Decision issued November 3, 2014 (2014-089-IB), the PSC adopted the investigator’s conclusions and ordered the remedies recommended by the investigator. While these remedies have not been implemented in light of the judicial review proceedings commenced by the respondents, if implemented, might well result in Mr. Shakov’s losing his current indeterminate position as Head of International Projects within FJA. This is because Mr. Shakov’s eligibility to compete for his current position was premised on his having been validly appointed to his former term position as Director of the International Projects Division as the FJA staffed the indeterminate position on an internal basis.
II. Relevant Statutory Provisions, Regulations and Policies [17] To place the issues in this appeal in context, it is necessary to first outline the relevant statutory provisions, regulations and polices as this appeal asks this Court to consider the scope of and interplay between a number of statutory and regulatory provisions and various federal policies concerning official languages and staffing.
A. The PSEA [18] The preamble to the PSEA sets out the objects of the PSEA and provides:
Recognizing that […]
Attendu : […]
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,
[19] Sections 30 and 31 of the PSEA govern the appointment process for public service staffing actions. They state:
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.
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.
Meaning of merit
Définition du mérite
(2) An appointment is made on the basis of merit when
(2) Une nomination est fondée sur le mérite lorsque les conditions suivantes sont réunies :
(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
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;
(b) the Commission has regard to
b) la Commission prend en compte :
(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
(i) toute qualification supplémentaire que l’administrateur général considère comme un atout pour le travail à accomplir ou pour l’administration, pour le présent ou l’avenir,
(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and
(ii) toute exigence opérationnelle actuelle ou future de l’administration précisée par l’administrateur général,
(iii) any current or future needs of the organization that may be identified by the deputy head.
(iii) tout besoin actuel ou futur de l’administration précisé par l’administrateur général.
[…]
[…]
Qualification standards
Normes de qualification
31 (1) The employer may establish qualification standards, in relation to education, knowledge, experience, occupational certification, language or other qualifications, that the employer considers necessary or desirable having regard to the nature of the work to be performed and the present and future needs of the public service.
31 (1) L’employeur peut fixer des normes de qualification, notamment en matière d’instruction, de connaissances, d’expérience, d’attestation professionnelle ou de langue, nécessaires ou souhaitables à son avis du fait de la nature du travail à accomplir et des besoins actuels et futurs de la fonction publique.
Qualifications
Qualifications
(2) The qualifications referred to in paragraph 30(2)(a) and subparagraph 30(2)(b)(i) must meet or exceed any applicable qualification standards established by the employer under subsection (1).
(2) Les qualifications mentionnées à l’alinéa 30(2)a) et au sous-alinéa 30(2)b)(i) doivent respecter ou dépasser les normes de qualification applicables établies par l’employeur en vertu du paragraphe (1).
[20] Section 2 of the PSEA defines the “employer” for purposes of the PSEA as meaning the Treasury Board for federal government departments. Therefore, in respect of the FJA, subsection 31(1) authorizes the Treasury Board to establish qualification standards in relation to language.
[21] Under section 33 of the PSEA, appointments may be made on an advertised or non-advertised basis.
[22] Typically, the PSC’s appointment authority under the foregoing provisions is delegated under section 15 of the PSEA to the deputy heads of the respective federal departments and institutions to which the PSEA applies. (Often, in practice, this authority is further sub-delegated within the organization under subsection 24(2) of the PSEA.)
[23] The PSC’s authority to investigate an external appointment process and take corrective action as required is enshrined in section 66 of the PSEA:
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
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.
[24] Subsection 67(2) of the PSEA provides authority for the PSC to investigate and correct problems with internal appointments made by deputy heads, but only where requested to do so by the deputy head. The enumerated corrective measures are identical to those in section 66.
[25] An individual who loses his or her position as the result of a revocation under sections 66 to 69 of the PSEA may be re-appointed to another appropriate position pursuant to section 73 of the PSEA:
73 Where the appointment of a person is revoked under any of sections 66 to 69, the Commission may appoint that person to another position if the Commission is satisfied that the person meets the essential qualifications referred to in paragraph 30(2)(a).
73 En cas de révocation de la nomination en vertu de l’un des articles 66 à 69, la Commission peut nommer la personne visée à un poste pour lequel, selon elle, celle-ci possède les qualifications essentielles visées à l’alinéa 30(2)a).
B. The Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.) (OLA) and Related Regulations and Policies [26] Part V of the OLA imposes obligations in the federal public service with respect to the language of work. Relevant for the present matter is subparagraph 36(1)(c)(i) (or paragraph 36(1)(c) in French) of the OLA, which states:
36 (1) Every federal institution has the duty, within the National Capital Region […] to
36 (1) Il incombe aux institutions fédérales, dans la région de la capitale nationale […] :
[…]
[…]
(c) ensure that,
(i) where it is appropriate or necessary in order to create a work environment that is conducive to the effective use of both official languages, supervisors are able to communicate in both official languages with officers and employees of the institution in carrying out their supervisory responsibility […].
c) de veiller à ce que, là où il est indiqué de le faire pour que le milieu de travail soit propice à l’usage effectif des deux langues officielles, les supérieurs soient aptes à communiquer avec leurs subordonnés dans celles-ci […].
[27] Section 91 of the OLA places a limit on the imposition of mandatory linguistic profiles in staffing:
91 Nothing in Part IV or V authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken.
91 Les parties IV et V n’ont pour effet d’autoriser la prise en compte des exigences relatives aux langues officielles, lors d’une dotation en personnel, que si elle s’impose objectivement pour l’exercice des fonctions en cause.
[28] Under subsection 46(1) and paragraph 46(2)(c) of the OLA, the Treasury Board is provided the authority to make directives in order to give effect to Part V of the OLA (which includes subparagraph 36(1)(c)(i)):
46 (1) The Treasury Board has responsibility for the general direction and coordination of the policies and programs of the Government of Canada relating to the implementation of Parts IV, V and VI in all federal institutions other than the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer, office of the Conflict of Interest and Ethics Commissioner and Parliamentary Protective Service.
46 (1) Le Conseil du Trésor est chargé de l’élaboration et de la coordination générales des principes et programmes fédéraux d’application des parties IV, V et VI dans les institutions fédérales, à l’exception du Sénat, de la Chambre des communes, de la bibliothèque du Parlement, du bureau du conseiller sénatorial en éthique, du bureau du commissaire aux conflits d’intérêts et à l’éthique et du Service de protection parlementaire.
(2) In carrying out its responsibilities under subsection (1), the Treasury Board may
(2) Le Conseil du Trésor peut, dans le cadre de cette mission :
[…]
[…]
(c) issue directives to give effect to Parts IV, V and VI.
c) donner des instructions pour l’application des parties IV, V et VI.
[29] The Treasury Board has issued directives regarding the identification of appropriate linguistic profiles for positions within the public service. At the time of the events at issue in this matter, public service staffing was governed by the Treasury Board’s Directive on the Linguistic Identification of Positions or Functions. The Directive stated:
In regions designated as bilingual for language-of-work purposes […], institutions ensure that:
• employees occupying bilingual […] positions are supervised in their preferred official language […];
• employees receive personal and central services in their preferred official language.
(emphasis in original removed)
[30] It is common ground between the parties that the National Capital Region has been designated as bilingual for language of work purposes.
[31] In terms of the level of language proficiency required, the Directive stated:
To ensure services of quality in both official languages, the language proficiency levels of positions or functions involving service to the public or to employees, as well as supervision of employees, are identified at the “BBB” level or higher.
To ensure that the work environment is conducive to the effective use of both official languages:
• positions or functions at the assistant deputy minster level and other assistant deputy head titles […] anywhere in Canada are identified at the “CBC” proficiency level […];
• the proficiency levels of executive positions or functions in regions designated as bilingual for language-of-work purposes are set at least at “CBC” if the positions or functions include at least one of the following activities:
ο supervision of employees occupying bilingual positions […].
(emphasis in original removed)
[32] The Directive further provided that:
Deputy heads are accountable for implementing this directive in their institutions.
(emphasis in original removed)
[33] Appendix 2 to the Directive dealt with staffing rules applicable to institutions subject to the PSEA. It provided that indeterminate bilingual positions, below the executive EX-02 level, could be staffed on a non-imperative basis with unilingual candidates in accordance with the Public Service Official Languages Appointment Regulations, SOR/2005-347 (the PSOL Appointment Regulations) and the Public Service Official Languages Exclusion Approval Order, SI/2005-118 (the Exclusion Approval Order).
[34] The PSOL Appointment Regulations and the Exclusion Approval Order provide a mechanism for appointing unilingual candidates into indeterminate bilingual positions to be staffed on a non-imperative basis. Under them, such an appointment can be made as long as the successful candidate meets all of the other required merit criteria and the deputy head determines that the bilingual position does not require, at the time of appointment, a bilingual incumbent. In such case, the employer must provide language training to the appointee with the aim of securing the requisite linguistic profile within two years. This period can be extended in certain (generally exceptional) circumstances. If the appointee cannot achieve the required ratings, he or she will be deployed into an appropriate position.
[35] Under the Treasury Board’s Directive on the Linguistic Identification of Positions or Functions, where such appointments occur, managers were charged with “[p]utting in place measures to fulfil the tasks and functions linked to the position while the person occupying the position does not meet the language requirements”.
[36] The Directive also contemplated exceptional staffing situations, stating:
The following are examples of staffing situations in which a candidate who does not meet the language requirements may be considered:
• when the potential applicant pool is very limited due to the highly specialized nature of the duties and the knowledge needed for a position;
• when the institution would receive an insufficient number of applications from members of one or the other official language community.
C. PSC Guidelines [37] Finally, the PSC has developed its own guidelines to assist in choosing corrective measures to address failures in appointment processes. In its Guidance Series – Corrective Action and Revocation, the PSC provides that corrective actions must address the impact of the impropriety and that such impact is identified by considering who the error or omission affected and what parts, if any, of the appointment process needed to be corrected. The guideline goes on to state that if the defect in the process was that the chosen candidate did not meet an essential qualification, “there may be no choice but to revoke the appointment”. When revocation and possible re-appointment are on the table as an appropriate corrective measure, the PSC instructs in the same policy document that a decision to revoke an appointment should be informed by considering the candidate’s role in any misconduct, the length of time the individual has been in the position and fairness to the individual. The PSC notes, in addition, that the overall integrity of the appointment process must be considered and that the individual making the decision to revoke an appointment must consider: “[w]hat message will leaving the person in the position send to other employees in the organization?”
III. The Decision of the PSC and the Federal Court [38] With this backdrop in mind, it is now possible to review the decisions made by the PSC and the Federal Court in these matters.
A. The PSC Decision [39] Turning first to the PSC decision, as the PSC adopted the investigator’s report and recommendations, the report is to be considered as the PSC’s reasons for decision: see, by analogy, Sketchley v. Canada (Attorney General), 2005 FCA 404 at paras. 37-38, [2006] 3 F.C.R. 392; Tan v. Canada (Attorney General), 2015 FC 907 at para. 48, [2015] F.C.J. No. 954; Shaw v. Royal Canadian Mounted Police, 2013 FC 711 at para. 44, [2013] F.C.J. No. 772.
[40] To begin with, the investigator noted that “a position’s language profile should be established objectively based on the functions of the position and not on the linguistic preference of the employees reporting to the incumbent of the position” as provided by section 91 of the OLA (Appeal Book, Volume 3, page 617). The investigator continued by noting that the investigation revealed that the employees who were to be supervised by Mr. Shakov at the time of his appointment did not oppose being supervised solely in English. However, given the high turnover in the Division, the investigator found that it was likely that at least one employee in the Division might request supervision in French. In addition, Mr. Shakov admitted during the course of the investigation that his lack of French undermined his ability to fully participate in management committee meetings, which were conducted in both official languages. The investigator therefore concluded that the position of Director ought to have been bilingual.
[41] Consequently, the investigator found that the position’s linguistic profile had been re-classified to English Essential in order to accommodate Mr. Shakov’s lack of ability to work in French. She based her conclusion on the following: the linguistic profile for the Director position had been CCC bilingual since its creation and only became English Essential immediately prior to Mr. Shakov’s initial appointment; an HR employee had advised Ms. Clemenhagen that the language profile for the position should be at a minimum BBB given that four out of five positions under the Director’s supervision were bilingual; management-level meetings were conducted in English and French; the Director was the only director within FJA not required to be bilingual; Mr. Giroux and Ms. Clemenhagen knew that Mr. Shakov had limited proficiency in French; and the language requirement was changed to BBB within a month of Mr. Shakov obtaining that profile in French.
[42] The investigator further found that Mr. Giroux and Ms. Clemenhagen had opted for a non-advertised external process without justification. Ms. Clemenhagen informed the investigator – and Mr. Giroux confirmed – that a non-advertised process was chosen because the former Director had unexpectedly left the position, putting the Division in jeopardy and that Mr. Shakov possessed the highly specialized skills for the position and otherwise met the essential qualifications for the position. The investigator did not accept these explanations. She held that there was no basis for pursuing a non-advertised process, concluding that there were other candidates who likely possessed the required skills and there was nothing to suggest that Mr. Shakov would have stopped assisting FJA on a contractual basis had he not been appointed.
[43] However, there was no evidence before the investigator to support the assumption that other candidates possessed the required skills; the investigator premised this assumption on the fact that Mr. Giroux and Ms. Clemenhagen had not run a competitive process to determine whether there were any such potential candidates and that the FJA had engaged consultants other than Mr. Shakov in the past. Neither of these two facts establishes that there were other qualified candidates available to the FJA. The investigator also gave no credence to Mr. Giroux’s concern that a contract with Mr. Shakov to perform the duties of the Director on a contractual basis might have exceeded the applicable regulatory expenditure limits.
[44] Although not included in the “Analysis” section of her report, the investigator also noted that the former Director and Mr. Giroux differed in their recollections of the circumstances of the former Director’s departure. While Mr. Giroux suggested that the Director position needed to be filled imminently due to the former Director’s departure and incapacity, the former Director noted that he had been willing to stay and assist in a transition and had previously received positive performance reviews (and performance pay) for his work as Director. What the investigator failed to note is that Mr. Giroux did not ask the former Director to remain on until a competitive process could be run and a new individual trained. Given the state of the Division under the former Director’s leadership, it is unsurprising that no such offer was made.
[45] The investigator identified both processes – the linguistic profile reclassification and the choice not to advertise the appointment process – as constituting improper conduct within the meaning of section 66 of the PSEA. As noted, on the basis of her conclusions, the investigator recommended that:
• Mr. Giroux and Ms. Clemenhagen both be enrolled in mandatory remedial staffing training;
• Mr. Giroux and Ms. Clemenhagen’s delegated authority to make appointments be revoked until their completion of that training; and
• Mr. Shakov’s term appointment be retroactively revoked, effective the day before he was appointed to his current position on an indeterminate basis.
[46] By virtue of removing the officials’ delegated staffing authority, the investigator also implicitly recommended that any authority to re-appoint Mr. Shakov be delegated back up to the PSC. The investigator did not recommend that the PSC exercise such authority to appoint Mr. Shakov to any other position.
B. The Federal Court Decision [47] In allowing the applications, the Federal Court focused on three issues: the existence of improper conduct, the alleged tailoring of the language requirement and the justification for undertaking a non-advertised appointment process.
[48] Recognizing the deference owed to the PSC’s decision under the reasonableness standard, the Federal Court nevertheless reasoned that the investigator equally owed deference to Mr. Giroux’s discretionary authority, as Acting Deputy Commissioner, to establish the qualifications for the impugned position. According to the Federal Court, Mr. Giroux’s decision “should not be interfered with [by the PSC] unless there is evidence that [he exceeded his] jurisdiction by acting on considerations unrelated to the interest of the office” (Reasons at para. 55). The Federal Court essentially operated on the premise that, as long as Mr. Giroux’s staffing decisions were reasonable, interference on the part of the PSC would be unreasonable. The Federal Court held that Mr. Giroux’s managerial decision to establish an English Essential language profile for the Director fell within the range of reasonable outcomes and that the PSC’s contrary decision was unreasonable for two reasons.
[49] First, the Federal Court considered the operational context surrounding the FJA officials’ decision to establish the Director position as English Essential to see if that decision met the definition of improper conduct under section 66 of the PSEA. Based on a review of the case law, the Federal Court held that improper conduct “is found in cases where managerial concerns were set aside to favour the interests of a particular individual” and has not been found where a decision is “based on legitimate, objective managerial imperatives” (Reasons at para. 52). Applying this test, the Federal Court found that no improper conduct had occurred because “[t]he decision to establish the linguistic profile as English Essential was designed solely for the best interest of the FJA and not tailored to benefit Mr. Shakov” (Reasons at para. 62).
[50] Second, the Federal Court considered whether there was a legislative requirement that mandated the position of the Director to be bilingual. In the Federal Court’s view, subparagraph 36(1)(c)(i) of the OLA does not impose such a requirement. The Court held in this regard (Reasons at para. 61):
There was no legislative requirement that the position be bilingual because in the short term there was no concern regarding the ability to supervise employees in the language of their choice. While the other Director positions in the FJA have an imperative bilingual profile in order to allow bilingual employees to address their Director in the official language of their choice, at the time of the Appointment Process none of the International Programs Division employees required supervision in French. At the hearing, counsel for the FJA acknowledged that one of the employees was not an Anglophone but noted that this person held a bilingual position. There is no indication that this employee ever needed or asked to communicate with Mr. Shakov in French.
[51] Turning to consider FJA’s use of a non-advertised process, the Federal Court concluded that Mr. Giroux’s decision fell within the range of reasonable outcomes and therefore the PSC’s intervention was unreasonable. The Court considered the pressures facing FJA at the time of the decision and concluded “there was nothing improper or unsuitable in making a decision in the best interests of the FJA and the survival of the International Programs” (Reasons at para. 71). In the Federal Court’s view, the investigator failed to appreciate the explanation provided by the FJA officials as to why a non-advertised process was appropriate. This failure led the investigator to second-guess Mr. Giroux’s managerial decision in an unreasonable manner.
[52] Although the Federal Court’s conclusions on improper conduct were adequate to grant the applications, the Court went on to comment on the reasonableness of the corrective measures adopted by the PSC. According to the Court, none of the measures could withstand scrutiny as they did not reinforce the integrity of the appointment process because all of the impugned conduct had been carried out to support the interests of the FJA and not Mr. Shakov.
IV. The Issues on Appeal [53] The appellant Attorney General of Canada raises three issues on appeal.
[54] First, the Attorney General takes issue with the overall approach applied by the Federal Court, submitting that instead of assessing the PSC’s decision on the deferential reasonableness standard, the Federal Court erroneously put itself in the shoes of the PSC to re-evaluate the FJA’s staffing decision. The Attorney General says that, in so doing, the Federal Court asked the wrong question as Mr. Giroux’s managerial decision was not the subject of the applications for judicial review.
[55] Second, the Attorney General submits that the Federal Court erred in finding the PSC’s decision to be unreasonable insofar as concerns the Court’s assessment of the official languages issue. The Attorney General asserts in this regard that the combined effect of paragraph 30(2)(a) of the PSEA, subsections 36(1) and 46(1), paragraph 46(2)(c) and section 91 of the OLA as well as the Treasury Board Directive on the Linguistic Identification of Positions or Functions required that the linguistic profile for the Director position be set at a minimum at BBB bilingual as it was located in the National Capital Region and required the supervision of incumbents in several positions that had bilingual linguistic profiles.
[56] More specifically, the Attorney General maintains that the Directive is the means that the Treasury Board has adopted to ensure that subparagraph 36(1)(c)(i) of the OLA is respected and that it establishes an essential qualification under paragraph 30(2)(a) of the PSEA. Responding to the Federal Court’s finding that official languages requirements can be relaxed in certain circumstances, the Attorney General says that essential qualifications for a position cannot be abrogated by “additional” qualifications under subparagraph 30(2)(b)(i) of the PSEA.
[57] Because linguistic capacity is identified as an essential qualification under paragraph 30(2)(a) of the PSEA and because the Director position ought to have been classified as a bilingual one, the Attorney General submits that it was reasonable for the PSC to find that the selection of English Essential for the linguistic profile was improper conduct, within the meaning of the PSEA. The Attorney General asserts in this regard that behaviour which “undermines [linguistic duality] – including contraventions to the legislative scheme – may reasonably be construed as improper conduct” (appellant’s memorandum of fact and law at para. 39).
[58] Third, the Attorney General maintains that the Federal Court erred in finding the remedies to be unreasonable, arguing that the PSC’s corrective measures all fall within the broad discretion afforded under section 66 of the PSEA. The Attorney General also notes that any harshness in the remedy may well be abrogated by the PSC deciding to appoint Mr. Shakov to his current position – an option that the Attorney General submits is still open by virtue of section 73 of the PSEA.
[59] The respondents disagree on all points, submitting that the Federal Court’s judgment ought not to be disturbed. While recognizing there might have been what they termed “a technical” violation of the Treasury Board Directive on th