Attorney General of Canada v. Oleg Shakov, et al.
(Federal Court) (Civil) (By Leave)
Employment law - Public service, Procedure - Employment law — Public service — Employees — Hiring — Procedures — Qualifications — Respondent appointed Director of International Programs for Office of Commissioner for Federal Judicial Affairs — Linguistic profile changed to English essential to accommodate respondent Director’s language abilities — Public Service Commission investigator finding Federal Judicial Affairs respondents acted improperly in changing linguistic profile — Public Service Commission revoking appointment of respondent Director and removing authority of Federal Judicial Affairs respondents to make appointments and requiring them to undergo remedial staff training — Reviewing judge and majority of Federal Court of Appeal agreeing that Public Service Commission investigator’s decision unreasonable — Whether Public Service Commission considered exigent circumstances before Federal Judicial Affairs.
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After the previous Director of International Programs (Division) for the Office of the Commissioner for Federal Judicial Affairs (FJA) left unexpectedly, the respondent Mr. Shakov was appointed on an interim basis (the term position). He 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 therefore 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. Mr. 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 already holding an internal position. The Public Service Commission (PSC) conducted an audit of the FJA’s action in appointing Mr. Shakov to the term position. The PSC investigator concluded that the (other) respondents Mr. Giroux and Ms. Clemenhagen had engaged in behaviour that amounted to improper conduct by having set the language profile of the position as English only and in having decided to staff the position through an unadvertised process. The investigator recommended that Mr. Giroux and Ms. Clemenhagen be enrolled in remedial staffing training, that their authority to make appointments be revoked until the completion of such training and that Mr. Shakov’s term appointment be retroactively revoked. The PSC adopted the investigator’s conclusions and ordered the remedies that she proposed. Mr. Shakov, Mr. Giroux and Ms. Clemenhagen sought judicial review of the PSC’s decision. The Federal Court (FC) and a majority of the Federal Court of Appeal (FCA) concluded that the PSC had failed to consider the exigent circumstances facing the Division, while a dissenting justice at the FCA concluded otherwise.
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