Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13 )

PART 5Investigations and Complaints Relating to Appointments

Investigation of Appointments by Commission

Marginal note:External appointments

66 The Commission may investigate any external appointment process and, if it is satisfied that the appointment was not made or proposed to be made on the basis of merit, or that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may

• (a) revoke the appointment or not make the appointment, as the case may be; and

• (b) take any corrective action that it considers appropriate.

Marginal note:Internal appointments — no delegation

• 67 (1) The Commission may investigate an internal appointment process, other than one conducted by a deputy head acting under subsection 15(1), and, if it is satisfied that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment, the Commission may

  • (a) revoke the appointment or not make the appointment, as the case may be; and

  • (b) take any corrective action that it considers appropriate.

• Marginal note:Internal appointments — delegation

  (2) The Commission may, at the request of the deputy head, investigate an internal appointment process that was conducted by a deputy head acting under subsection 15(1), and report its findings to the deputy head and the deputy head may, if satisfied that there was an error, an omission or improper conduct that affected the selection of the person appointed or proposed for appointment,

  • (a) revoke the appointment or not make the appointment, as the case may be; and

  • (b) take any corrective action that he or she considers appropriate.

Marginal note:Political influence

68 If it has reason to believe that an appointment or proposed appointment was not free from political influence, the Commission may investigate the appointment process and, if it is satisfied that the appointment or proposed appointment was not free from political influence, the Commission may

• (a) revoke the appointment or not make the appointment, as the case may be; and

• (b) take any corrective action that it considers appropriate.

Marginal note:Fraud

69 If it has reason to believe that fraud may have occurred in an appointment process, the Commission may investigate the appointment process and, if it is satisfied that fraud has occurred, the Commission may

• (a) revoke the appointment or not make the appointment, as the case may be; and

• (b) take any corrective action that it considers appropriate.

Marginal note:Powers of Commission

• 70 (1) In conducting any investigation under this Part, the Commission has all the powers of a commissioner under Part II of the Inquiries Act.

• Marginal note:Informality

  (2) An investigation shall be conducted by the Commission as informally and expeditiously as possible.

Marginal note:Persons acting for Commission

• 71 (1) The Commission may direct that any investigation under this Part be conducted, in whole or in part, by one or more Commissioners or other persons.

• Marginal note:Powers of Commissioner

  (2) A Commissioner directed under subsection (1) has the powers referred to in section 70 in relation to the matter before the Commissioner.

• Marginal note:Powers of other person

  (3) Subject to any limitations specified by the Commission, a person directed under subsection (1), other than a Commissioner, has the powers referred to in section 70 in relation to the matter before the person.

Marginal note:Right to make submissions

72 Where an investigation is conducted under this Part in relation to a person’s appointment or proposed appointment, that person and the deputy head in relation to the appointment — or their representatives — are entitled to make submissions to the Commission, Commissioner or other person, whichever is conducting the investigation.

Marginal note:Re-appointment following revocation

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).

Complaints to Board — Revocation of Appointment

Marginal note:Complaint

74 A person whose appointment is revoked by the Commission under subsection 67(1) or by the deputy head under subsection 15(3) or 67(2) may, in the manner and within the period provided by the Board’s regulations, make a complaint to the Board that the revocation was unreasonable.

Marginal note:Right to be heard

75 Where a complaint is made under section 74, the complainant, the deputy head and the Commission — or their representatives — are entitled to be heard by the Board.

Marginal note:Revocation set aside

76 Where the Board finds a complaint under section 74 to be substantiated, it may order the Commission or the deputy head, as the case may be, to set aside the revocation.

Complaints to Board — Internal Appointments

Marginal note:Grounds of complaint

• 77 (1) When the Commission has made or proposed an appointment in an internal appointment process, a person in the area of recourse referred to in subsection (2) may — in the manner and within the period provided by the Board’s regulations — make a complaint to the Board that he or she was not appointed or proposed for appointment by reason of

  • (a) an abuse of authority by the Commission or the deputy head in the exercise of its or his or her authority under subsection 30(2);

  • (b) an abuse of authority by the Commission in choosing between an advertised and a non-advertised internal appointment process; or

  • (c) the failure of the Commission to assess the complainant in the official language of his or her choice as required by subsection 37(1).

• Marginal note:Area of recourse

  (2) For the purposes of subsection (1), a person is in the area of recourse if the person is

  • (a) an unsuccessful candidate in the area of selection determined under section 34, in the case of an advertised internal appointment process; and

  • (b) any person in the area of selection determined under section 34, in the case of a non-advertised internal appointment process.

• Marginal note:Excluded grounds

  (3) The Board may not consider an allegation that fraud occurred in an appointment process or that an appointment or proposed appointment was not free from political influence.

Marginal note:Notice to Canadian Human Rights Commission

78 Where a complaint raises an issue involving the interpretation or application of the Canadian Human Rights Act, the complainant shall, in accordance with the regulations of the Board, notify the Canadian Human Rights Commission of the issue.

Marginal note:Notice to Accessibility Commissioner

78.1 If a complaint raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, the complainant shall, in accordance with the regulations of the Board, notify the Accessibility Commissioner, as defined in section 2 of that Act.

Marginal note:Right to be heard

• 79 (1) A person making a complaint under section 77, the person appointed or proposed for appointment, the deputy head and the Commission — or their representatives — are entitled to be heard by the Board.

• Marginal note:Canadian Human Rights Commission

  (2) Where the Canadian Human Rights Commission is notified of an issue pursuant to section 78, it may make submissions to the Board with respect to that issue.

• Marginal note:Accessibility Commissioner

  (3) If the Accessibility Commissioner is notified of an issue under section 78.1, he or she may make submissions to the Board with respect to that issue.

Marginal note:Application of Canadian Human Rights Act

80 In considering whether a complaint under section 77 is substantiated, the Board may interpret and apply the Canadian Human Rights Act, other than its provisions relating to the right to equal pay for work of equal value.

Marginal note:Application of Accessible Canada Act

80.1 In considering whether a complaint under section 77 is substantiated, the Board may interpret and apply the Accessible Canada Act.

Marginal note:Corrective action when complaint upheld

• 81 (1) If the Board finds a complaint under section 77 to be substantiated, the Board may order the Commission or the deputy head to revoke the appointment or not to make the appointment, as the case may be, and to take any corrective action that the Board considers appropriate.

• Marginal note:Relief for discrimination

  (2) Corrective action taken under subsection (1) may include an order for relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act.

• Marginal note:Relief

  (3) Corrective action taken under subsection (1) may include an order for relief in accordance with section 102 of the Accessible Canada Act.

Marginal note:Restrictions

82 The Board may not order the Commission to make an appointment or to conduct a new appointment process.

Marginal note:Failure of corrective action

83 Where the Commission has made or proposed an appointment as a result of the implementation of corrective action ordered under section 81, a complaint may be made to the Board, in the manner and within the period provided by its regulations, by

• (a) the person who made the complaint under section 77,

• (b) the person who was the subject of the appointment or proposed appointment referred to in subsection 77(1), or

• (c) any other person directly affected by the implementation of the corrective action,

on the grounds that the person was not appointed or proposed for appointment by reason of an abuse of authority by the Commission or deputy head in the implementation of the corrective action.