Complaint Dismissed: Abuse of Authority in Appointment Process

OUTCOME: Dismissed

Date: 20260512 File : 771-02-49776 Citation: 2026 FPSLREB 57 Federal [NAME_5] Act and Public Service Employment Act Before a panel of the Federal [NAME_5] [NAME_1] Complainant and [NAME_2] (Department of [NAME_3]) Respondent and OTHER PARTIES Indexed as [NAME_1] v. [NAME_2] (Department of [NAME_3]) In the matter of a complaint of abuse of authority - sections 77(1)(a) and (b) of the Public Service Employment Act Before: [NAME_4], a panel of the Federal [NAME_5] For the Complainant: [NAME_6], [NAME_7] For the Respondent : [redacted] For the Public Service Commission: [NAME_9], senior analyst ADVANCE \y 657 Heard via videoconference, August 26 and 27 and October 27, 2025.

REASONS FOR

DECISION I. Introduction [ 1 ] This complaint is about the appointment of an appointee through a non-advertised appointment process numbered 23-[NAME_10]-INA-RCN-511833 to the position of senior [NAME_24] chief classified at the [NAME_11] group and level with the Royal Canadian Navy at the [NAME_12] ([NAME_12]) in Halifax, Nova Scotia (“[NAME_13]”). It was a promotional indeterminate appointment for him, effective April 30, 2024. His substantive position at the time was as a firefighter, [NAME_24] chief, classified at the [NAME_14] group and level, but he had been acting in the [NAME_11] position on a long-term basis before the appointment was made. [ 2 ] [NAME_1] (“the complainant”) works as [NAME_15] chief classified at the [NAME_14] group and level at [NAME_13]. He made this complaint with the Federal [NAME_5] (“the Board”) on May 13, 2024, alleging that the [NAME_2] head of the Department of [NAME_3] (“the respondent”) abused its authority in the choice of a non-advertised process and in the application of merit in the appointment process at issue in this decision. The complaint was made under ss. 77(1) and (b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “[NAME_16] ”). [ 3 ] The respondent denied that it abused its authority. [ 4 ] The complainant is a civilian career firefighter with over 18 years of service. He is interested in advancing his career and has applied to several appointment processes. When the appointment process at issue was underway, his name was in at least two prequalified pools. He had a legitimate expectation that the respondent would use the pools to fill vacancies, as it had previously done, but it did not happen. It chose to fill two senior [NAME_24] chief vacancies with internal non-advertised and advertised processes. [ 5 ] Based on the evidence, I am satisfied that the respondent did not abuse its authority when it chose an internal non-advertised appointment process to appoint the appointee to one of the two vacant [NAME_11] senior [NAME_24] chief positions. Additionally, I find that the appointee met the essential qualifications for the position. The appointment process was free from bias against the complainant. [ 6 ] Therefore, I dismiss the complaint. [ 7 ] Although I have dismissed the complaint, I am empathetic to the complainant’s situation, and later in this decision, I will comment on the use of prequalified appointment pools in appointment processes. [ 8 ] In this decision, “the Board” refers to the present Board in its current iteration and all its predecessors, including the former Public Service Staffing Tribunal.

II. Summary of the allegations [ 9 ] The complainant alleged that the respondent abused its authority in the assessment of merit and in its choice of a non-advertised appointment process. [ 10 ] The complainant alleged that the respondent did not follow the [NAME_12] [NAME_17] 1004 (“the FMD 1004”) about the minimum requirements and that it lowered the essential criteria for the position, to favour the appointee. The fact that the qualifications changed from one process to another is an example of abuse of authority. [ 11 ] He alleged that there was a reasonable apprehension of bias from the assessment board members against him because there had been differences of opinions, a previous complaint, and situations that affected the judgment of those in charge of the appointment process. [ 12 ] According to the complainant, the respondent favoured the appointee through different means, such as having him act in the position for one year before his appointment. The respondent failed or neglected to communicate the qualifications to potential candidates and bypassed a [NAME_18]. [ 13 ] He alleged that the choice of a non-advertised process was an abuse of authority because the respondent did not explain why it chose that process and why it bypassed the [NAME_18]. [ 14 ] The complainant alleged that the respondent failed to properly document the assessment and the justification for its choice of a non-advertised process. Certain statements and facts in its articulation of selection decision (ASD) were false and misleading. The ASD did not explain why a non-advertised process was used.

III. Summary of the evidence [ 15 ] The parties filed a joint book of documents consisting of 17 tabs and 57 digital pages. The complainant also filed a book of documents containing 11 tabs and 44 digital pages. He testified on his own behalf, and the respondent called two witnesses, [NAME_17] Chief [NAME_19] and [NAME_2] [NAME_17] Chief [NAME_20]. [ 16 ] The Public Service Commission ([NAME_21]) did not attend the hearing, but it provided its standard written submissions to address its applicable policies and guidelines. It took no position on the merits of the complaint. A. For the complainant [ 17 ] [NAME_1] testified on his own behalf. His substantive position is as [NAME_15] chief classified at the [NAME_14] group and level. He became an [NAME_14] in October 2016. He reports to the senior [NAME_24] chief ([NAME_11]) on the [NAME_24]. The Department of [NAME_3] ([NAME_10]) operates two firehalls in Nova Scotia, one at the [NAME_13] dockyard located at [ADDRESS] in Halifax, and the other one is at the [NAME_22]) located in Bedford. He works primarily at the [NAME_13] dockyard, but he is sometimes assigned to work at the [NAME_23] in CFAD Bedford. [ 18 ] The [NAME_23] at [NAME_13] has 4 platoons, A, B, C, and D. The complainant works on [NAME_24] and has been acting as the senior [NAME_24] chief on that [NAME_24] for the past 8 months. The firefighters are mainly shift workers, working a 24-hours-on and 72-hours-off schedule. [ 19 ] He qualified to act as an [NAME_11] in 2017. He had to work alongside a substantive [NAME_11] for a period. He had to demonstrate that he could complete all the [NAME_11]’s daily tasks. Since then, he has acted in that position several times on both short- and long-term bases. As of the hearing, he was acting in the [NAME_11] position on [NAME_24]. [ 20 ] Since he had competed in other processes, he knew that the essential qualifications listed on the Notification of Consideration ([NAME_25]) were inaccurate for the appointment process at issue. The respondent lowered the requisite essential criteria for the position. [ 21 ] For instance, [COMPANY_26] ([NAME_27]) certification requirements for the position had to be higher than level 1. The level 1 certificate is usually required for FR-01 and FR-02 positions. He also testified that the educational qualifications were too low for the position. The listed qualifications reflected an FR-02 position. The [NAME_17] officer level 1 was for lower-level positions. The [NAME_27] [NAME_17]-level officer certificates should be higher than level 1. [ 22 ] The complainant has a degree in industrial relations with a certificate in human resources from Saint Mary’s University in Halifax. He is also taking a [NAME_17] service leadership certificate program at Dalhousie University, also in Halifax. [ 23 ] A [NAME_17] officer level 2 is required for the [NAME_14] position. [ 24 ] He testified that the essential qualifications used to assess the candidate in the appointment process were watered down, to ensure that the preselected candidate was appointed. The essential qualifications, relevant to the issues, listed on the [NAME_25] were as follows: … Essential qualifications English essential Education: High school level diploma or equivalent General Educational Development (GED). Valid certification from a recognized Emergency Medical Training service provider in Advanced First Aid, Cardiopulmonary Respiration (CPR) and Automated External Defibrillator (AED). [COMPANY_26] ([NAME_27]) 1021 [NAME_17] I certificate from an [NAME_29]) or Pro-board accredited entity. [COMPANY_26] ([NAME_27]) 1041 [NAME_17] Service Instructor Level I certificate from an [NAME_29]) or Pro-board accredited entity. [COMPANY_26] ([NAME_27]) 1072 Hazardous Material Technician Level certification from an [NAME_29]) or Pro-board accredited entity, OR [COMPANY_26] ([NAME_27]) 472 Hazardous Materials Technician Level certificates from an [NAME_29]) or Pro-board accredited entity. Experience: Minimum of four years experience as a [NAME_17] (acting and/or substantive) supervising firefighters. Experience directing and supervising firefighters in the performance of routine station assignments, scheduled maintenance inspections and firefighter proficiency training. Experience with preparing and producing emergency incident reports. Experience with producing and verifying watch bills & staffing assignments. Experience with interpreting and enforcing applicable orders, guidelines & policies. … [Emphasis in the original] [ 25 ] The FMD 1004 outlines the required training and experience for the career progression of civilian firefighters. The required qualifications for the [NAME_24] chief ([NAME_14]) are as follows: … 20. Incumbents shall have met all requirements for the [NAME_2] [NAME_24] Chief level prior to proceeding to [NAME_24] Chief level qualifications. The following qualifications shall be met at the [NAME_24] Chief position, or within eighteen (18) months from the date of hire: A. HAZMAT IC Training : Incumbent shall successfully complete the [NAME_27] 470 Incident Commander Level certification or approved equivalent, such as “Gestion d’une intervention impliquant des matières dangeureuses.” (Quebec) B. [NAME_17] II : Incumbents shall successfully achieve the [NAME_27] 1021 [NAME_17] II certification. C. [COMPANY_31] ([NAME_32]) : Incumbent shall successfully complete the courses listed in Annex A. … [Emphasis in the original] [ 26 ] In the past, the respondent has required five years’ minimum experience as a career [NAME_17] officer supervising firefighters for the [NAME_11] position, so the listed qualifications were not high enough. The educational qualification must be higher than a high-school diploma — the position’s incumbent should have had some form of post-secondary education or training to work as an [NAME_11]. [ 27 ] He referred to the [NAME_27] 1072 incident commander level as the requisite qualification. The incumbent should be at that level. An incident commander is in command and control of a [NAME_17] incident. [NAME_27] 1072 hazardous materials has four levels — awareness level, operational level, technician level, and incident commander level. The senior [NAME_24] chief requires the highest [NAME_27] 1072 level. [ 28 ] As for the apprehension-of-bias allegation, he testified that it involved [NAME_33], [NAME_2] [NAME_17] Chief [NAME_20] , [NAME_34], and [NAME_35]. He testified that all four individuals were involved in the appointment process subject to this complaint. [ 29 ] The complainant explained that he made a complaint against [NAME_34]’s appointment as the senior [NAME_24] chief in 2019; his career progression has stalled since then. He received limited acting opportunities; he was moved from crew to crew and was passed over for acting opportunities. He was successful in that process and was placed in a [NAME_18] of candidates. However, he remains the only one from that process who has not been appointed. Problematic individuals were transferred to his crew, and [NAME_34] gave him impossible challenges when he became the [NAME_2] [NAME_17] chief. [ 30 ] When the other [NAME_2] [NAME_17] chief (administration), [NAME_20], arrived at the department as a priority hire, he was assigned to [NAME_24], where the complainant was the long-term acting [NAME_11]. He was responsible for onboarding [NAME_20] to assume the [NAME_11] position. He suspects that [NAME_20] might not have been happy with the training that he received and that that was the source of his bias toward the complainant. [NAME_20] was formerly a Canadian Armed Forces (CAF) firefighter, and the complainant believes that [NAME_20] was not impressed with him because he was also new to the [NAME_11] role. His belief is confirmed by the fact that [NAME_20] recommended that another [NAME_14] from the [NAME_36] be promoted ahead of him. [ 31 ] The appointee’s promotion was further evidence of bias against the complainant. [NAME_19] took a one-year leave of absence, and during his absence, [NAME_20] acted as the [NAME_17] chief. The complainant believes that promoting the appointee and another person ahead of him was indicative of retaliation for making the complaint in 2019. [ 32 ] [NAME_19] is the FR-08 [NAME_17] chief, which he became in 2018, when the previous [NAME_17] chief retired. [ 33 ] The complainant testified that although he was in a [NAME_18], he was consistently passed over for promotions. He was the only prequalified candidate from the 2019 pool who was not promoted. He has received good performance reviews, yet he has found that he is unable to progress in his career. For him, the lack of career progression is evidence of bias against him. He has over 18 years of service, is fluently bilingual, and has devoted significant time and effort to progressing his career, all to no avail. [ 34 ] The complainant believes that the reference in the ASD to the appointee’s performance during the 2023 wildfires in Hammonds Plains and Tantallon, Nova Scotia, as justification for his appointment, was unfair, for two reasons. First, the wildfires exercise was a team effort to which everyone contributed. Second, the appointee was working in his substantive [NAME_14] position during that exercise because an [NAME_11] on site was the incident commander. B. For the respondent 1. [NAME_2] [NAME_17] Chief [NAME_20] [ 35 ] [NAME_20] testified that he has been the [NAME_2] [NAME_17] chief (FR-05) at the [NAME_13] dockyard since August 2023. In this role, he provides operational support to the platoons, and he is accountable to the [NAME_17] chief for procurement and the platoons’ operations. He plays a role in staffing. He also participates in the [NAME_23]’s policy work. He is currently the [NAME_2] [NAME_17] chief of strategic support at [NAME_13] [NAME_17]. He assumed this position in August 2023. His primary duties are to support operations within the [NAME_17] department through procurement, policy development, and special projects. He reports directly to the [NAME_17] chief. [ 36 ] Just before assuming this role, he was the acting [NAME_17] chief during the period that the [NAME_17] chief was on leave. [ 37 ] [NAME_20] has received training in staffing and has also been involved in several appointment processes. He explained that there were two vacancies for the senior [NAME_24] chief ([NAME_11]) positions on the operational platoons that management had been staffing on an acting basis. Senior management discussed the need to staff the leadership vacancies on the operational platoons indeterminately, to bring leadership stability and continuity to the operations. [ 38 ] The senior [NAME_24] chief is the senior firefighter on an operational [NAME_24] and has primary responsibility for the safe operation, supervision, and management of the platoons. The senior [NAME_24] chief is also the senior [NAME_17] officer or incident commander during an emergency response. [ 39 ] [NAME_20] reviewed the essential qualifications for the senior [NAME_24] chief’s position and confirmed that those listed on the [NAME_25] were common to all senior [NAME_24] chief positions across the country. [ 40 ] The appointee was acting as the [NAME_11] on the [NAME_24]. He demonstrated strong leadership skills and was able to bring operational efficiency and stability to the team. Senior management discussed the need to fill the vacancies at the leadership levels on the platoons, especially since one senior [NAME_24] chief was retiring. [ 41 ] As the acting [NAME_17] chief, [NAME_20] was able to take a broad environmental scan of the [NAME_23], to assess candidates with the necessary skills and resiliency for the kind of leadership required at the [NAME_11] group and level. For him, the critical question was whether the supervisor would be able to get the team back safe and sound at the end of the day. The appointee stood out and demonstrated strong leadership in his acting role on that [NAME_24]. The firefighters listened to and respected him. He had the calm resiliency to take control of an incident scene and to safely administer his [NAME_24]. [ 42 ] [NAME_20] got to know the appointee when he joined the [NAME_13] [NAME_23] in September 2019. He interacted with him operationally as his direct supervisor or as his peer when the appointee was acting. He did not have a personal relationship with the appointee. Based on his observations of the appointee’s performance, he had no hesitation recommending him for the indeterminate appointment. [ 43 ] He testified that he harboured no bias against the complainant. He was the complainant’s immediate supervisor when he first joined the [NAME_13] [NAME_23]. He was the senior [NAME_24] chief, and at that time, the complainant was acting in the position. The complainant assisted him with his initial orientation. [ 44 ] In response to the complainant’s testimony about bias, [NAME_20] explained that he had previously occupied leadership roles in the CAF as a military firefighter. In his management role, he observes and assesses the strengths of his team members and areas where training and improvement may be required. [ 45 ] On cross-examination, [NAME_20] explained that the complainant was very cordial and that he helped him a great deal. He had no complaints about the handover from the complainant to him. He acknowledged that there might have been a bit of discomfort since he was coming in as the new boss, but he was sensitive to that possibility. [ 46 ] [NAME_20] testified that when he was the senior [NAME_24] chief, he informally received information about the complainant from his co-workers. He also testified that he was aware that the complainant had made a staffing complaint. He had information that the complainant had made harassment and staffing complaints, but they had no impact on his role in the appointment process at issue. [ 47 ] He explained that two vacant [NAME_11] positions were to be staffed, one on [NAME_15], where the appointee was acting in the position on a long-term basis, and the other one on [NAME_24], where the respondent staffed the [NAME_11] position using short-term rotating acting appointments. He recommended that the appointee be appointed indeterminately to the [NAME_11] position on [NAME_15]. 2. [NAME_33] [ 48 ] [NAME_19] is currently the [NAME_17] chief at the [NAME_13] [NAME_23], which is [NAME_10]’s largest [NAME_23]. His role is to provide overall strategic leadership for the [NAME_23]. He has taken the necessary staffing training and has conducted numerous appointment processes, both as the hiring manager and as a member of the assessment board. He was the sub-delegated manager for the appointment process at issue in this complaint. [ 49 ] He testified as to firefighters staffing levels at [NAME_13] and identified operational officer positions and their respective roles. Operational officer positions are classified at the FR-02 group and level and higher. The staffing complement is composed of day workers and shift workers. The shift workers are the firefighters who work on the front lines. The [NAME_11] senior [NAME_24] chief position is the senior operational officer on the [NAME_24] and is responsible for the team’s day-to-day operations. The senior [NAME_24] chief position is unique to the large firehalls at [NAME_12] Esquimalt, British Columbia, and [NAME_13]. [ 50 ] The essential qualifications outlined in the [NAME_25] accurately reflected the basic minimum requirements for this unique position. As for the [NAME_17] officer level certificate, the respondent specified a level 1 certification as the basic minimum but noted that both the appointee and the complainant had achieved their [NAME_17] officer level 2 certifications. He denied that it was specifically lowered to favour the appointee. [ 51 ] At the time of the appointment process, the [NAME_23] was undergoing challenging times in that 50% of its operational officer complement was vacant, meaning that those positions were not staffed indeterminately. There were vacant operational officer positions at the [NAME_11], [NAME_14], and FR-02 levels that he wanted to staff. He sought approval from the Civilian Workforce Management Board (CWMB), which is the entity responsible for allocating and approving staffing proposals from managers, to staff all the vacant officer positions. He only received approval to staff 2 [NAME_11] positions. [ 52 ] In consultation with his designated staffing advisor and the local union, [NAME_19] decided that he would use an internal non-advertised process and an internal advertised process to staff the two positions. He needed to address immediate and urgent needs on the team and to provide a broad opportunity for internal promotions. As a hiring manager, he had to balance the competing imperatives of quick staffing to fill a leadership role and to promote the values of fairness, access, representativeness, and transparency in staffing. [ 53 ] [NAME_19] explained that he used the non-advertised process to appoint the appointee because it was expedient and because of the urgent need to staff the position, to provide leadership continuity, consistency, and stability. The senior [NAME_24] chief is the most senior officer on the [NAME_24] and stands in for the [NAME_17] chief. The respondent decided to use the non-advertised process to fill the vacancy on [NAME_15] indeterminately and to use the advertised process to staff the other position on [NAME_24]. The appointee had been acting in the [NAME_11] position on [NAME_15] on a long-term basis; therefore, it was the most expedient way of proceeding. [ 54 ] [NAME_19] did not have any personal relationship with the appointee. He has a reputation of not socializing with colleagues outside the workplace. [ 55 ] When one of the two long-term acting FR-04s announced his retirement, it was the impetus for the decision to run the advertised and non-advertised processes. There were five potential contenders for the two vacant [NAME_11] positions, including the complainant. Of the five, two stood out for excellence, the appointee and another individual who announced his retirement at the relevant time. The appointee had proved himself as a competent leader and had skillfully brought leadership and stability to [NAME_15] that was historically in turmoil. He had worked hard to gain the respect of the [NAME_24]’s members. [NAME_19] was confident that the complainant would be a strong candidate in the advertised appointment process. [ 56 ] In a wide-ranging cross-examination, [NAME_19] explained the historical context of his organization, past appointment processes, and the staffing challenges that he faced. I will outline only those parts of his testimony that I found relevant to this complaint. [ 57 ] On the issue of the choice of process, [NAME_19] described a situation in which only 50% of his operational officer complement was indeterminately staffed. Two FR-03s were acting on a long-term basis in the [NAME_11] positions. He faced staff morale issues, employee burnout, and excessive overtime use. There was an urgent need to ensure consistent leadership and continuity and to reduce staff burnout. [ 58 ] [NAME_19] was asked why he did not staff both positions through the non-advertised process and appoint the complainant from the existing prequalified pools. He explained that none of the existing pools was appropriate for [NAME_13]. Specifically, with respect to the [NAME_36] that the complainant was in, he explained that upper management informed the complainant that the pool would not be used for any future appointments. As for the external firefighter inventory, he did not consider it a legitimate inventory for [NAME_13] even though the advertisement for that process stated that there were immediate [NAME_11] openings in [NAME_12] Halifax. He explained that that process was done without consulting the civilian [NAME_17] chiefs across the country. [ 59 ] [NAME_19] did not use non-advertised processes to staff both [NAME_11] positions because he wanted to open the opportunity to a wider candidate pool. He was convinced that the complainant would be a strong candidate in the process. He launched the internal advertised process for the other [NAME_11] position concurrently with the non-advertised process. He expected that the process would be completed within a couple of months. Unfortunately, the CWMB took over the appointment processes for hiring firefighters. He was informed that all firefighter recruitment processes would be done at the national level. [ 60 ] He denied that his decisions to use a non-advertised process and to not use the prequalified pools were influenced by any negative reports that he had received about the complainant.

IV. Summary of the arguments A. For the complainant [ 61 ] The complainant argued that there was an abuse of authority in the choice of process and in the application of merit and an apprehension of bias against him. He referred to the following cases: [NAME_37] v. Canada ([NAME_3]) , 2006 [NAME_38] 8; [NAME_39] v. [NAME_40] of [NAME_3] , 2009 [NAME_38] 29 ( [NAME_39] ); [NAME_41] v. [NAME_40] of [NAME_3] , 2012 [NAME_38] 6; [NAME_42] v. [NAME_40] of Industry , 2019 FPSLREB 83 ( [NAME_42] ); and [NAME_43] v. Canada (Attorney General) , 2017 FCA 30 ( [NAME_43] ). [ 62 ] He withdrew some of his main allegations during the argument stage. He no longer alleged abuse of authority in relation to FMD 1004 or that the respondent failed to properly assess him. He withdrew his allegations relating to the following: · the failure to comply with the FMD 1004; · removing or lowering the list of qualifications, to ensure the appointment of a preselected candidate ; · changing qualifications from one process to another; · the improper assessment of the complainant as part of the process; and · the appointment was not based on merit because there was no evidence of an assessment or that the qualifications were assessed. [ 63 ] The complainant also emphasized that he was not seeking a revocation of the appointment, even though he believed that there was an abuse of authority. In his view, a revocation would not be conducive to harmonious workplace and labour relations. He would like the Board to make a declaration that the respondent’s conduct in this process rose to the level of an abuse of authority and to provide direction to address the abuses that occurred in this process. [ 64 ] In terms of the choice of process, the complainant’s counsel argued that there was no need to prove intent or mens rea [criminal intent]. It had only to establish that there were errors that rose to the level of an abuse of authority or to demonstrate that one of the five categories of abuse identified in [NAME_37] occurred (see [NAME_37] , at para. 70). [ 65 ] In this case, the respondent’s ASD explained that there were two [NAME_11] vacancies and that one was being staffed on an acting basis. It had to staff one position indeterminately on an urgent basis using the internal non-advertised process to bring immediate relief while allowing access to staff the other vacancy using an advertised process. [ 66 ] The complainant argued that that rationale was false for two reasons. First, the respondent never conducted an advertised process to staff the other vacancy; no appointments were made. The second reason was that there was no urgent need to bring relief because the appointee had been acting in that position continuously for over a year, and there were stability and continuity in leadership. [ 67 ] In his testimony, [NAME_19] explained that the respondent chose an internal non-advertised process because management and the local union agreed that that process would ensure that internal candidates would be promoted to the exclusion of military personnel. [ 68 ] The complainant’s counsel argued that that testimony was quite concerning because it was a direct violation of ss. 34, 35.1 and 35.11 of [NAME_16] . [NAME_44] and veterans have priority rights and are entitled to participate in internal advertised processes. Based on [NAME_19]’s testimony, the choice of an internal non-advertised process was made in bad faith, to specifically avoid advertising a process that could have led to other qualified candidates applying. [ 69 ] That engaged one of the five categories of abuse outlined in [NAME_37] , namely, exercising discretion with an improper intention in mind. The fact that the complainant was not a CAF member or a veteran is irrelevant to a finding of abuse of authority based on this category (see [NAME_45] v. [NAME_40] of [NAME_3] , 2010 [NAME_38] 9 at para. 73). Deliberately using the internal non-advertised process to exclude a group of candidates is an abuse of authority. This is particularly egregious because the reasons outlined in the ASD were false. [ 70 ] [NAME_19] also testified that the choice of the internal non-advertised process was made to address the low workplace morale, to address the strain on resources from using overtime, and to ensure leadership continuity. These reasons were not stated in the ASD. All the reasons for choosing a non-advertised process must be clearly articulated in the ASD. This was an error that rose to the level of an abuse of authority. [ 71 ] The divergence between the [NAME_19]’s testimony as to the real reason for choosing the internal non-advertised process demonstrates bad faith and amounts to abuse of authority (see [NAME_42] , at paras. 90 to 93). [ 72 ] In this case, an [NAME_14] was moved to an [NAME_11] position indeterminately; resources were shuffled but not increased. The respondent exercised it discretion improperly or simply refused to exercise it. There was also a perception of favouritism toward the appointee. The complainant was in prequalified [NAME_11] pools that could have been used to staff the other vacancy, but the respondent chose not to. [NAME_19] testified that he wanted to staff all four vacant [NAME_11] positions at the [NAME_23], but he was allowed to staff only two. If there was such an urgency to staff these leadership positions for all the reasons that [NAME_19] gave in his testimony, why did the respondent not use the existing prequalified pools? [ 73 ] With respect to the application of merit, the complainant’s counsel urged the Board to look at all the circumstances and to focus on the complainant’s perspective. He referred the Board to the Federal Court of Appeal’s [NAME_43] decision and urged it to follow the Court’s guidance to the Board set out at paragraphs 76 to 82 of that decision. [ 74 ] Specifically, the Court stated that a first and primary consideration is the decision’s impact on the employee. Secondly, the Board must objectively assess what occurred and not simply rely on the employer’s avowed good faith. The complainant’s counsel acknowledged that [NAME_43] was a labour relations case, but the principles that the Court described in the cited paragraphs apply equally to how the Board must assess and weigh the evidence before it. [ 75 ] In this case, the complainant had been successful in multiple prequalified pools and had consistently demonstrated an attempt to advance his career, to no avail. There was a reasonable apprehension of bias against him because of past differences of opinions, complaints, and other workplace situations that affected the respondent’s objectivity about him. It improperly impeded his career advancement. Bypassing the [NAME_18] disadvantaged him, in the appointee’s favour. [ 76 ] The respondent violated the values of access and transparency because it did not communicate its intention to proceed with an internal non-advertised process in the workplace, which did not allow interested and other qualified candidates to express an interest. [ 77 ] The respondent favoured the appointee by allowing him to act in the position for a considerable period. [ 78 ] Not only was the content of the ASD incomplete, but also, it was false and misleading. When it assessed the appointee’s merit, the respondent relied on the appointee’s performance during the 2023 wildfires in Hammonds Plains and Tantallon and stated that the appointee outperformed expectations and provided leadership in the most difficult circumstances. The respondent failed to recognize that that wildfire exercise was a team effort. B. For the respondent [ 79 ] The respondent referred to the following cases: [NAME_46] v. [COMPANY_47], 2006 [NAME_38] 12 ( [NAME_46] ); Attorney General of Canada v. [NAME_48] , 2009 FC 618; [NAME_49] v. [NAME_40] of Indian and Northern Affairs Canada , 2018 FPSLREB 41; [NAME_50] v. Commissioner of Correctional Service of Canada , 2012 [NAME_38] 17; [NAME_51] v. [NAME_40] of Public Safety and Emergency Preparedness , 2008 [NAME_38] 22 ( [NAME_51] ); Committee for Justice and Liberty v. Canada (National Energy Board) , [1978] 1 SCR 369 ( Committee for Justice and Liberty ); [NAME_52] v. [NAME_53] , 2020 FPSLREB 23 ( [NAME_54] ); [NAME_55] v. [NAME_40] of Public Works and Government Services Canada , 2008 [NAME_38] 7 ( [NAME_55] ); [NAME_56] v. Chief Administrator of the Courts Administration Service , 2024 FPSLREB 23; [NAME_57] v. [NAME_2] (Department of Justice), 2022 FPSLREB 9; [NAME_58] v. [NAME_40] of [NAME_3] , 2011 [NAME_38] 6; [NAME_59] v. Director of Public Prosecutions , 2018 FPSLREB 65; [NAME_60] v. Canada (Human Ressources and Social Development) , 2007 [NAME_38] 11; [NAME_61] v. Canada (Justice) , 2009 FC 684; [NAME_62] v. [NAME_2] (Department of Foreign Affairs, Trade and Development) , 2023 FPSLREB 109 ( [NAME_62] ); [NAME_63] v. [NAME_2] (Correctional Service of Canada), 2023 FPSLREB 68; [NAME_64] v. Commissioner of Correctional Service of Canada , 2009 [NAME_38] 9 ( [NAME_64] ); [NAME_65] v. [NAME_66] of the Immigration and Refugee Board of Canada , 2009 [NAME_38] 33; Ont. Human Rights Comm. v. Simpsons-Sears , [1985] 2 S.C.R. 536; [NAME_67] v. [NAME_2] of Service Canada , 2006 [NAME_38] 14 ( [NAME_67]) ; [NAME_68] v. [NAME_2] (Department of Natural Resources) , 2024 FPSLREB 43; [NAME_69] v. [NAME_40] of [NAME_3] , 2007 [NAME_38] 25; [NAME_70] v. the [NAME_2] of Service Canada , 2006 [NAME_38] 17 ( [NAME_70] ); [NAME_71] v. [NAME_72] of the [COMPANY_47] , 2017 PSLREB 22 ( [NAME_71] 2017 ); [NAME_71] v. [NAME_2] (Department of Employment and Social Development) , 2022 FPSLREB 90 ( [NAME_71] 2022 ); [NAME_73] v. [NAME_40] of Human Resources and Skills Development Canada , 2011 [NAME_38] 2 ( [NAME_73]) ; and [NAME_74] v. [NAME_40] of Justice , 2007 [NAME_38] 24. [ 80 ] The complainant had the burden of proof to demonstrate on a balance of probabilities that the respondent abused its authority in the appointment process at issue (see [NAME_37] , at para. 55; [NAME_46] at para. 44; and [NAME_67] , at para. 47). [ 81 ] Based on the evidence, the complainant failed to meet his burden. [ 82 ] The choice of an internal non-advertised process is not necessarily an abuse of authority; the complainant must prove that the decision to use it was itself an abuse of authority (see [NAME_70] , at para. 36). Hiring managers have broad discretion to choose a non-advertised process to fill a vacancy (see [NAME_51] , at para. 32; [NAME_64] , at paras. 67 to 70; and [NAME_73] , at paras. 16 and 17). [ 83 ] In this case, the respondent demonstrated that it had a pressing operational need to staff two leadership positions at the [NAME_23], to bring stable and consistent leadership to its operations. The internal non-advertised process was the expedient way to appoint the appointee. As stated in the ASD, there was a need to staff one of the positions immediately, to bring immediate relief to [COMPANY_75]. The respondent intended to staff second [NAME_11] position through an internal advertised process. [ 84 ] The respondent conducted an environmental scan of the FR-03s in the workplace, to determine the choice of candidate. The appointee stood out from all his peers and therefore was selected. The fact that the complainant might have been qualified in an [NAME_11] did not mean that he had to be selected first (see [NAME_52] at para. 66; and [NAME_71] (2022) at paras. 96 and 97). [ 85 ] The complainant alleged that the appointee’s assessment was not based on merit because the essential qualifications were lowered to fit the appointee’s credentials. He failed to meet his burden of proof on this point. The respondent has the discretion to appoint the person who meets the essential qualifications and who is the right fit for the position. The complainant’s disagreement with the respondent’s choice of a particular criterion in the essential qualifications does not amount to abuse of authority (see [NAME_71] 2017 , at para. 71). [ 86 ] The respondent argued that it is not the Board’s role to assess the appointee; nor does it play an investigative role. The creation of the essential qualifications for the position was exclusively within the respondent’s discretion (see [NAME_61] , at para. 70). [ 87 ] The respondent disagreed with the complainant that the contents of the ASD were false and misleading. The ASD adequately explained the choice of process and accurately reflected the reality of [NAME_13]. [ 88 ] As for the allegation of personal favouritism, the respondent argued that the complainant failed to meet his burden of proving it. There was no evidence to support that allegation. [NAME_19] testified that he had no personal relationship with the appointee. He knew him only through his work at [NAME_13] (see [NAME_55] at para. 41). Even though the appointee had the opportunity to act in the position for a long time, in and of itself, it is not evidence of personal favouritism; more is required (see [NAME_62] at para. 108; [NAME_76] v [NAME_40] of Fisheries and Oceans , 2021 FPSLREB 3 at paras. 56 to 58; and [NAME_71] 2017 , at para. 88). [ 89 ] On the allegation of bias against him, the complainant did not establish that the four individuals whom he identified demonstrated any reasonable apprehension of bias against him. Suspicions, speculations, and possibilities of bias are not enough to meet the legal test for a reasonable apprehension of bias (see [NAME_39] , at para. 124). [ 90 ] The respondent asked that the complaint be dismissed and that any remedies sought be denied. C. For the [NAME_21] [ 91 ] The [NAME_21] submitted its standard written submissions on its Appointment Policy as well as specific submissions on the complaint. The Appointment Policy applies to the appointment processes underlying this complaint. It requires [NAME_2] heads to respect the duty to accommodate, employment equity obligations, and its official languages obligations throughout an appointment process. It also referred to [NAME_77] and [NAME_78] v. [NAME_40] of Citizenship and Immigration , 2008 [NAME_38] 24; [NAME_79] v. [NAME_2] (Department of [NAME_3]) , 2023 FPSLREB 37; [NAME_80] v. Canada (Attorney General) , 2015 FC 523; [NAME_37] ; and [NAME_81] v. Commissioner of the Correctional Service of Canada , 2016 PSLREB 34. [ 92 ] When an appointment is made, the [NAME_21]’s Appointment Policy requires the [NAME_2] head to ensure that the proposed appointee meets each essential qualification, including the official language proficiency and any asset qualifications or organizational needs or operational requirements applied in the process. [ 93 ] The [NAME_2] head is required to complete a form outlining several requirements, including an evaluation of its assessment methods and how it identified biases or barriers that disadvantaged persons belonging to an equity-seeking group and the efforts made to remove or mitigate their impacts, if identified. [ 94 ] The expected results of the [NAME_21]’s Appointment Policy are as follows: … · A non-partisan and representative workforce of individuals drawn from across the country, benefitting from the diversity, linguistic duality and range of backgrounds and skills of Canadians; · Appointment processes that are inclusive, free from discrimination, and where reasonable efforts have been made to remove biases or barriers, or mitigate their impact; · Appointment processes conducted in a fair and transparent manner and in good faith; · Appointments of highly competent persons who meet the needs of the organization; and · Timely correction of errors and omissions. … [ 95 ] [NAME_2] heads and anyone exercising the [NAME_21]’s delegated authority must comply with its policies. Non-compliance with the [NAME_21]’s policies is problematic; however, it does not necessarily mean that there is an abuse of authority. It is one of the factors that the Board must consider when determining whether an abuse of authority occurred in an appointment process. [ 96 ] The essential qualifications in the merit criteria for an appointment process must relate to the work to be performed and must meet or exceed any applicable qualification standard set by the employer. [ 97 ] The [NAME_2] head may use either an advertised or a non-advertised appointment process. [ 98 ] All appointments made to or from within the public service must be based on merit, except for acting appointments of less than four months and casual appointments. The [NAME_2] head need not consider more than one person for an appointment to be based on merit. [ 99 ] The [NAME_2] head may choose either an advertised or a non-advertised process when making an appointment under s. 33 of [NAME_16] . [ 100 ] The [NAME_21] took no position on the merits of the complaint and whether its Appointment Policy was breached.

V. Reasons [ 101 ] The complainant alleged that the respondent abused its authority in the choice of appointment process and in the application of merit. He also alleged that the assessment board members demonstrated bias against him by not using the prequalified pools that he was in. He emphatically stated that he was not asking that the appointment be revoked. He asked the Board to make a declaration that the respondent abused its authority in the manner that he described. [ 102 ] I will address the four main issues, as follows:

1) Did the respondent abuse its authority within the meaning of [NAME_16] by using a non-advertised process to appoint the appointee to the [NAME_11] position? 2) Did the respondent abuse its authority by making an appointment that did not meet merit with the meaning of [NAME_16] ? 3) Was there a reasonable apprehension of bias against the complainant that rose to the level of abuse of authority? 4) Did the respondent personally favour the appointee? A. The choice of a non-advertised process was not an abuse of authority [ 103 ] Section 33 of [NAME_16] allows the [NAME_21] and its delegates to use an advertised or a non-advertised appointment process. It appears to be a broad discretion. Currently, there are no [NAME_21] guidelines as to when or how to select one or the other. Merely choosing a non-advertised process over an advertised process is not an abuse of authority. The complainant must demonstrate that the decision itself was an abuse of authority (see [NAME_51] , at paras. 32 and 34). [ 104 ] The Board has held that choosing a non-advertised appointment process is justified when there are pressing operational needs to staff a position, if there is sufficient evidence to support such needs and the decision-making process is transparent (see [NAME_64] , at paras. 68 and 69; and [NAME_73] , at paras. 16 and 17) . [ 105 ] In this case, [NAME_19] clearly explained why he chose to use the non-advertised process to appoint the appointee indeterminately to the [NAME_11] position in [NAME_15]. The appointee had already been acting in the position on a long-term basis, and there was a pressing need to ensure stability and continuity of leadership on the [NAME_24]. In the ASD, he explained as follows: … This position is currently being staffed using acting [ sic ] but needs to be staffed indeterminately. The choice of process will be a non-advertised appointment of an internal candidate. This is an urgent need and needs to be staffed as soon as possible. There are two vacancies at the FR 04 level and a decision to fill one of the vacancies using an internal-non-advertised process brings immediate relief while allowing access in the staffing of the other vacancy which is being staffed using an advertised process. … [ 106 ] [NAME_19] explained that operationally, there was an urgent need to staff, to reduce staff burnout and the excessive use of overtime. H e conferred with the local union, and they agreed that internal candidates should be used to staff the existing two [NAME_11] vacancies, “… to ensure consistency in leadership and demonstrate an advancement path for existing employees.” [ 107 ] The complainant argued that by agreeing with the local union to promote internally, the respondent abused its authority because it excluded [NAME_44] and veterans from the appointment process and thus circumvented ss. 34, 35.1, and 35.11 of [NAME_16] . He argued that it demonstrated bad faith and was an abuse of authority. [ 108 ] I disagree. [ 109 ] The provisions in [NAME_16] that the complainant referenced give [NAME_44] who are not indeterminately employed in the public service and veterans who have been honourably released a right to participate in an advertised internal appointment process and the right to make a complaint under s. 77 of [NAME_16] . The respondent decided to staff one of the two vacant [NAME_11] positions through an internal advertised process, meaning that [NAME_44] and veterans would have been eligible to participate and therefore were not excluded. [ 110 ] As of the hearing, the internal advertised process for the [NAME_11] position has stalled. [NAME_19] testified that the CWMB decided to streamline all staffing for the FR group and to run national appointment processes. [ 111 ] The complainant emphasized in his argument that he was not seeking a revocation of the appointee’s appointment. He also did not seriously question that the appointee lacked the merit for the position. He challenged the rationale that there was a pressing need to ensure the stability and continuity of leadership on the [NAME_24], given that the appointee had been uneventfully acting in that role on a long-term basis. At first blush, this argument seems to have merit; however, upon closer scrutiny, it loses its lustre. [ 112 ] It is clear from the general scheme of [NAME_16] that acting appointments are not to be used as staffing vehicles on a long-term basis. Acting appointments of less than four months are not subject to the merit principle (see the Public Service Employment Regulations (SOR/2005-334) at s. 14(1); and [NAME_82] v. [NAME_40] of Human Resources and Skills Development Canada , 2012 [NAME_38] 19 at para. 46). Acting appointments for extended and lengthy periods require notification to other employees, and recourse rights ought to be granted ( [NAME_83] v. [NAME_72] of the [COMPANY_47] , 2009 [NAME_38] 25). This is consistent with the merit principle underlying [NAME_16] . To accept the complainant’s implicit suggestion that the long-term acting appointment could simply have been extended runs counter to [NAME_16] ’s underlying merit principle. [ 113 ] I find that the rationale in this case is similar to the rationale in [NAME_64] , namely, meeting departmental or operational needs, and respect for appointment values (see [NAME_64] , at paras. 67 to 70 and 83). [ 114 ] First, I am satisfied that there was a pressing operational need to staff the [NAME_11] position on an indeterminate basis, which would not only have brought stability and leadership continuity but also would have brought the appointee a certain boost in morale. As [NAME_19] testified, 50% of the officer complement at the [NAME_13] [NAME_23] was vacant, and these staffing challenges adversely impacted staff morale. The CWMB approved only two of the [NAME_11] positions that he wanted to staff. [ 115 ] Second, I find that the process that the respondent adopted to staff the two vacant [NAME_11] positions was transparent. It decided to run an internal advertised process to staff one and use the non-advertised process for the other. It continued to use the acting-appointment vehicle to staff the other vacant [NAME_11] position, in which the complainant was acting as of the hearing and had been for some time. [ 116 ] I find that the respondent did not abuse its authority in the choice of appointment process. B. The appointment was based on merit [ 117 ] Section 30(1) of [NAME_16] requires that all appointments to or from within the public service be based on merit. An appointment is based on merit if the appointee meets the essential qualifications for the work to be done, including the official language proficiency, as established by the [NAME_2] head (see s. 30(2)(a)). The [NAME_21] or its sub-delegate may also have regard to any additional asset qualification, the organization’s current and future needs, and its operational requirements as established by the [NAME_2] head (see s. 30(2)(b)). [ 118 ] The respondent demonstrated that the appointee met all the essential qualifications for the work to be done. [ 119 ] Initially, the complainant argued that the appointee did not have the [NAME_17] officer level 2 certification; however, during cross-examination, he acknowledged that the appointee had obtained it. Other than the complainant’s arguments that the contents of the ASD were false and misleading, he did not demonstrate that the appointee failed to meet any essential qualification. Indeed, his insistence that there be no revocation is telling and underscores the respondent’s position that the appointment was based on merit. [ 120 ] During his argument, the complainant withdrew several allegations relating to the assessment of merit; therefore, the Board need not address them. The withdrawn allegations are as follows: … [NAME_84] is not following FMD 1004 which is a directive from the [NAME_17]’s office about the minimum requirement for a candidate to obtain a position. The FMD1004 includes a list of qualifications [NAME_84] as an employer is supposed to follow in order to appoint individual(s) to FR position [ sic ] . [NAME_84] is not following the list in question and [NAME_84] is either removing or lowering the list of qualifications to ensure the appointment of a pre-selected candidate. The fact the qualifications are changing from one process to another is an example of abuse of authority from [NAME_84]. … The Complainant was improperly assessed as part of this process, and … [NAME_84] abused its authority in the handling of the Complainant’s assessment. The appointment wasn’t made on the basis of merit as there is no evidence of an assessment or that qualifications were assessed.… … [ 121 ] I find that the appointee’s indeterminate appointment to the [NAME_11] position was based on merit. C. There was no reasonable apprehension of bias [ 122 ] The complainant’s allegation that there was a reasonable apprehension of bias against him and in favour of the appointee hinges on his interactions with members of the assessment board as well as his prior staffing complaint. [ 123 ] I understood that the complainant argued that ever since he made the staffing complaint in 2019, his career advancement has stalled. He no longer received acting appointments, and he was given challenging files and situations to handle. He was the last qualified candidate in the [NAME_11] that the respondent decided not to use for this appointment. [ 124 ] The legal test for a reasonable apprehension of bias is well established and is applicable in the staffing context. As the Supreme Court of Canada stated in Committee for Justice and Liberty , the proper test is the reasonableness test, namely, whether a reasonably informed bystander, viewing the situation realistically and practically, and having thought the matter through, would perceive it more likely than not that there was an apprehension of bias. [ 125 ] The relevant facts underlying the complainant’s bias allegation are threefold. First is the decision not to use the existing [NAME_18] to appoint him to the [NAME_11] position on [NAME_24]. Second, he had made an earlier staffing complaint. Third, he had previous conflicts and differences of opinion with the assessment board members. [ 126 ] I will address the use of the prequalified [NAME_11]. There is no requirement in [NAME_16] to establish prequalified pools of candidates. However, managers commonly use prequalified pools as staffing tools. They are consistent with one of the underlying objectives of [NAME_16] , which is that public service managers be given broad discretion to make staffing decisions expeditiously. The job opportunity advertisement usually notifies the candidates that a pool of qualified candidates might be established, to staff positions like the one advertised in the future. [ 127 ] The Board has consistently ruled that managers are not obliged to recruit candidates from existing prequalified pools (see [NAME_52] , at para. 66; and [NAME_85] v. Commissioner of the Correctional Service of Canada , 2021 FPSLREB 58, at paras. 40 to 46). [ 128 ] The complainant argued that if there was an urgency to staff the [NAME_11] leadership positions for all the reasons that [NAME_19] gave in his testimony, the respondent ought to have used the existing [NAME_18]. [ 129 ] [NAME_19] explained that none of the existing pools was appropriate for [NAME_13]. Specifically, with respect to the [NAME_36] that the complainant was in, he explained that upper management informed the complainant that the pool would not be used for any future appointments. As for the external firefighter inventory, he did not consider it a legitimate inventory for [NAME_13] even though the advertisement for that process stated that there were immediate [NAME_11] openings in [NAME_12] Halifax. He explained that that process was done without consulting the civilian [NAME_17] chiefs across the country. [ 130 ] I am satisfied with the respondent’s explanation for not using the existing prequalified pools. [ 131 ] With respect to the complainant’s earlier staffing complaint, the evidence submitted indicated that it was resolved by means of confidential minutes of settlement. He presented no other evidence to support what is in effect a retaliation allegation. It is not relevant to my analysis of the bias allegation in this case. [ 132 ] As for the previous conflicts and differences of opinion, I have closely reviewed the documents that the complainant submitted to support his allegation. I find nothing in the correspondence that meets the threshold of the test. The first is an email thread dated December 12, 2017, from [NAME_19], announcing to the [NAME_17] department that the complainant had become an acting [NAME_11] on an as-required basis. In it, [NAME_19] was complimentary of the complainant’s abilities and noted that he had “… earned the trust and respect of his peers and subordinates alike …”. Nothing in the email suggests any bias. [ 133 ] The next document is an email thread between the complainant and [NAME_19], starting on July 26 and ending on September 22, 2023. The subject matter was “Current FR 04 openings inquiry.” In it, the complainant posed a series of questions to [NAME_19] on why he had not been appointed from the pool and why he had not been promoted to an [NAME_11] position. [ 134 ] [NAME_19] informed him that there was no active [NAME_11] eligibility list. He also informed the complainant that certain operational changes were in the works that would provide future opportunities to him and others to showcase their skills and abilities. He also confirmed that management was looking to staff two vacant [NAME_11] positions. [ 135 ] The hiring manager, [NAME_19], explained that he did not use the [NAME_36] because it was no longer valid. Following the last appointment made from that pool in 2022, management decided to no longer consider or use that pool for future staffing. He further explained that the complainant was informed of it during an informal discussion. [ 136 ] [NAME_19] also testified that although he was aware that the complainant was a witness to ongoing harassment allegations in the [NAME_23], it was in the past, around 2011, and it did not influence his decision to use the non-advertised process. For him, the complainant did not stand out positively or negatively, as did the appointee. [ 137 ] I do not find anything in this correspondence that rises to the threshold of an apprehension of bias. [ 138 ] From May 16 to 18, 2023, the complainant and [NAME_34] had a third email thread, about [NAME_34]’s morning observations. It related to items that in his capacity as the acting [NAME_2] [NAME_17] chief, [NAME_34] found to be gaps or shortcomings in the complainant’s work. [NAME_34] ended his email with the following remark: “I do not want you to feel this is an attack on your abilities, my only goal is to bring it to your attention so it can be correct [ sic ] moving forward.” [ 139 ] The complainant responded to [NAME_34]’s email and provided his explanations and clarifications on the observations. [ 140 ] I did not find anything in this correspondence that rose to the threshold of an apprehension of bias. [NAME_34] was not the delegated decision maker. There was no evidence that he somehow influenced [NAME_19]. An employee and his or her supervisor may have a difference of opinion on work-related matters and work performance. That is part of the normal labour relations model. A supervisor’s regular duties include pointing out deficiencies in work performance. I find that the correspondence between the complainant and [NAME_34] was of this nature (see [NAME_86] v. [NAME_72] of the [COMPANY_47] , 2013 [NAME_38] 28 at para. 45, upheld on judicial review in [NAME_87] v. Canada ([COMPANY_47]) , 2015 FC 436 and on appeal in [NAME_86] v. Canada (Border Services Agency) , 2016 FCA 124, and an application for leave to appeal to the Supreme Court of Canada was dismissed ( Jean Pierre v. Canada (Border Services Agency) , [2017] S.C.C.A. No 247 (QL) ). [ 141 ] I do not find that anything in this correspondence that rises to the threshold of an apprehension of bias. [ 142 ] The Board concludes that the complainant failed to establish that his interactions with [NAME_19], [NAME_20], and [NAME_34] gave rise to a reasonable apprehension of bias. A reasonably informed bystander, having thought the matter through, would not perceive bias on the part of the hiring manager. D. The respondent did not personally favour the appointee [ 143 ] [NAME_16] does not define the term “abuse of authority”, it stipulates that the concept includes personal favouritism. In [NAME_55] , the Board ruled that personal favouritism is an improper conduct and one of the serious forms of abuse of authority that “… the public service as a whole should diligently strive to prevent” ( [NAME_55] at para. 40). [ 144 ] Direct or circumstantial evidence may be adduced to support the very serious allegation of personal favouritism in the context of an appointment process. The evidence must be clear and convincing and must show directly or by inference that personal favouritism led to or was a factor in making the appointment ( [NAME_55] at paras. 44 and 45). [ 145 ] Facts that may support a direct finding or an inference of personal favouritism include a personal relationship between the appointee and the hiring manager, comments or events prior to and during the appointment process. [ 146 ] In this case, the complainant alleged that the respondent favoured the appointee through different means such as having him act in the position for one year before the appointment. Acting in a position for an extended period does not, in and of itself, amount to personal favouritism ( [NAME_62] at para. 108; [NAME_76] at paras. 56 to 58 and [NAME_71] 2017 at para. 88). [ 147 ] There was no evidence that [NAME_19] appointed the appointee initially to the position on an acting basis. He testified that he had no personal relationship with the complainant and only knew him from the workplace. [ 148 ] I find that there was no evidence to support the allegation of personal favouritism. E. A final word on prequalified pools [ 149 ] I completely understand and sympathize with the complainant’s frustration about the respondent’s decision to not appoint from the [NAME_18]. [ 150 ] Recognizing that a pool of qualified candidates is a ready and convenient tool for public service managers to staff positions quickly and on an urgent basis, it must also be acknowledged that the existence of a [NAME_18] creates legitimate expectations for candidates as well. It goes without saying that an internal advertised process takes a large amount of time and effort from both the respondent and the candidates. [ 151 ] In this case, the complainant expected that he would be appointed to an [NAME_11] position from the [NAME_36] because all the qualified candidates in that pool had been appointed, except him. He believes that he was not appointed because of the complaint that he made and because of bias against him. [ 152 ] To avoid complaints of this nature, delegated managers must ensure that there is transparency around the creation and use of prequalified pools. It is recommended that successful candidates in prequalified pools be informed of appointment decisions and the rationale for using or not using the pools. Clarity in communications will go a long way to avoid the situation that the complainant found himself in. [ 153 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

VI. Order [ 154 ] The complaint is dismissed. May 12, 2026. [NAME_4], a panel of the Federal [NAME_5]