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LABOUR RELATIONS - Employees - Public service - Hiring - Procedures - Qualifications

Wednesday, January 17, 2018 @ 8:48 AM  

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Appeal by the Attorney General from a decision allowing judicial review of a decision of the Public Service Commission (PSC). The PSC revoked the respondent Shakov's term appointment as the Director of International Programs Division of the respondent Office of the Commissioner for Federal Judicial Affairs (FJA) and removed the authority of the Acting Commissioner of the FJA, Giroux, and the FJA’s Director of Compensation, Benefits and Resources, Clemenhagen, to make further appointments. The PSC also required Giroux and Clemenhagen to undergo remedial staffing training. The underlying dispute related to the departure of the Director of the FJA’s International Programs Division and the need to find a replacement for the position quickly so as to reinvigorate the Division. Giroux and Clemenhagen appointed Shakov to the position on an interim basis. Shakov was believed to have the skills and knowledge to quickly and effectively assume the responsibilities of the Director because of his years of experience working as a consultant in the Division. However, he had limited French language proficiency. The linguistic profile for the position was set as “English essential”, although the role had previously been classified as bilingual. There were no permanent francophone employees in the division. However, all subordinate positions were classified as bilingual and meetings were typically conducted in English and French. Shakov later improved his French-language skills to meet the minimum requirements. Subsequently, he obtained another appointment. His eligibility for the subsequent appointment was premised on his holding an internal position at the FJA. The PSC conducted an audit of the FJA’s action in appointing Shakov to the term position. The PSC investigator concluded that the FJA, Giroux and Clemenhagen had engaged in unsuitable behaviour that amounted to improper conduct within the meaning of s. 66 of the Public Service Employment Act (PSEA) by having set the language profile of the position as requiring English only and in having decided to staff the position through an unadvertised process. The investigator recommended that Giroux and Clemenhagen be enrolled in remedial staffing training, that their authority to make appointments be revoked until the completion of such training and that Shakov’s term appointment be retroactively revoked. The PSC adopted the investigator’s conclusions and ordered the remedies she proposed. Shakov, Giroux and Clemenhagen sought judicial review of the decision. The reviewing judge allowed the applications. He found that the choices made by Giroux came within his broad managerial discretion and that his actions were a reasonable short-term solution. The judge further found the PSC’s decision unreasonable because it failed to understand the quandary Federal Judicial Affairs was in, there was no legislative requirement for the position to be bilingual and the decision to establish the linguistic profile as English essential was designed solely for the best interest of the FJA and not tailored to benefit Shakov. He further found that there was a legitimate reason to employ a non-advertised process, namely to quickly appoint a director to ensure the survival of the International Programs. The Attorney General appealed, arguing that the judge applied the wrong standard of review, erred in finding the PSC decision unreasonable with respect to the official languages issue and erred in finding the PSC’s remedies unreasonable.

HELD: Appeal allowed in part. The reviewing judge correcting applied the reasonableness standard of review. The investigator failed to engage with the factual situation she was called upon to adjudicate and this failure rendered her decision unreasonable as she failed to answer the question remitted to her, namely, whether it was improper conduct, within the meaning of s. 66 of the PSEA, to classify a term supervisory position in the National Capital Region as English essential if that was required to avoid the likely collapse of a portion of the public service that provided an important international service. The investigator found that there was conduct that undermined the values of the PSEA because the linguistic profile was set to English essential to tailor it to meet Shakov’s abilities. However, in the unusual circumstances of the case, where the survival of the Division was imperiled, there were other factors that the investigator was required to also consider before reaching her conclusion that there had been improper conduct. Giroux and Clemenhagen were faced with a situation where competing values enshrined in the PSEA of ensuring selection of an urgently-required competent candidate and compliance with linguistic requirements applicable to the staffing process were pitted against one another. The only individual who was reasonably likely to be able to fill the urgent needs of the FJA and ensure the continued survival of the Division was Shakov. The investigator failed to consider such factors before reaching her conclusion. There was no evidence to support the investigator’s conclusions that there were other candidates or that Shakov could have stayed on as a consultant and performed the duties of Director. The portion of the remedial order to set aside Shakov’s appointment was unreasonable. Given that the appointment was over and he had been appointed to another position for which he met the language requirements, the only effect of the remedial order would be to remove an otherwise qualified individual from a difficult to staff position. Accordingly, the portion of the PSC’s order retroactively abrogating Shakov’s term appointment could not stand. The judgment of the Federal Court was varied to remit the investigation to the PSC for reconsideration in accordance with the Court’s reasons. In its reconsideration of the remitted issues, it would not be reasonable for the PSC to make the same remedial order with respect to Shakov.

Shakov v. Canada (Attorney General), [2017] F.C.J. No. 1249, Federal Court of Appeal, D.W. Stratas, A.F.J. Scott and M.J.L. Gleason JJ.A., December 19, 2017. Digest No. TLD-January152018006