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Section II: Analysis of Program Activities by Strategic Outcome

Strategic Outcome

Fair and impartial resolution of disputes related to internal appointments and lay-offs in the Government of Canada

The Tribunal's strategic outcome is derived directly from the mandate conferred upon it by the PSEA. Subsection 88(2) of the Act reads as follows: "The mandate of the Tribunal is to consider and dispose of complaints made under subsection 65(1) and sections 74, 77 and 83."

These sections – 65, 74, 77 and 83 – refer to lay-offs, the revocation of an appointment, internal appointments and the failure of corrective measures respectively.

In considering whether a complaint against an internal appointment or lay-off is founded, the Tribunal may interpret and apply the Canadian Human Rights Act.

The PSEA also permits the Tribunal to provide mediation services at any stage of its proceeding in order to resolve a complaint.

By providing neutral, third party recourse for staffing complaints within the federal public service, the Tribunal helps to ensure that Canada and Canadians are served by a highly competent and professional public service based on merit and non-partisanship.

Program Activity by Strategic Outcome

Program Activity: Adjudication and mediation of complaints filed under the Public Service Employment Act

2009-2010 Financial Resources ($ thousands)			2009-2010 Human Resources (FTEs)
Planned Spending	Total Authorities	Actual Spending	Planned	Actual	Difference
4,000	4,065	3,264	28	28	0

Program Activity: Internal Services

2009-2010 Financial Resources ($ thousands)			2009-2010 Human Resources (FTEs)
Planned Spending	Total Authorities	Actual Spending	Planned	Actual	Difference
1,478	1,649	1,621	9	9	0

Expected Results	Performance Indicators	Targets	Performance Status	Performance Summary
Tribunal decisions are timely, sound and well reasoned	Percentage of decisions where reasons are issued within four months of hearing	80%	Not met	The fact that the Tribunal did not have a full complement of members until March 2010 resulted in the Tribunal issuing only 15% of its Reasons for Decisions within four months of the hearing. On average, decisions were rendered within eight months of the hearing.
	Percentage of Tribunal decisions upheld on judicial review	95%	Met	Of the five applications for judicial review that were filed with the Federal Court, two were discontinued, two are still pending and one application was granted. The latter application, however, dealt only with the corrective measures ordered by the Tribunal and did not challenge the reasoning or conclusions in the decision.
Optimal utilization of Tribunal's dispute resolution services by parties	Percentage of mediations resulting in withdrawal of complaint	70%	Exceeded	Of the 201 mediation sessions held in 2009–2010, 175 resulted in a withdrawal of the complaints which represents a settlement rate of 87%.
Outputs	Performance Indicators	Targets	Performance Status	Performance Summary
Complaints processed	Percentage of case files closed within 270 days	80%	Mostly met	Of the 681 files closed during the fiscal year, 76% were closed within 270 days following the receipt of the complaint, slightly under the target of 80%.
	Number of complaints processed per year	As required	A total of 1,156 complaint files were processed during the year: 404 files were carried over from the previous year and 752 new complaints were submitted.	In 2008–2009, there were 821 new complaints. The number of new cases this year–752– represents an 8.5% decrease in the number of complaints received from the previous year.
Mediation sessions conducted	Number of mediations held per year	140	Exceeded	With a full complement of staff mediators and three temporary members available to provide mediation services, 201 mediation sessions were held during the year.
Mediation training courses delivered	Number of mediation training courses for stakeholders given per year	6	Met	The Tribunal met the training needs of its stakeholders by providing the Interest-based Negotiation and Mediation course six times.

Program Activity

Adjudication and mediation of complaints filed under the Public Service Employment Act

Benefits for Canadians

The PSEA was intended to modernize staffing in the public service by providing independent recourse for complaints related to internal appointments and lay-offs and also increase the availability and effectiveness of mediation in resolving complaints.

Through its efforts to both provide transparent, impartial and sound decisions to its stakeholders and help the parties resolve complaints without a hearing, the Tribunal contributes to the effective human resources management in the public service and the protection of the integrity of the appointment process. In this way, the Tribunal provides support to a public service based on merit and capable of delivering services of the highest quality to Canadians.

Performance Analysis

Expected Results

1. Tribunal decisions are timely, sound and well reasoned.

The Tribunal's main objective is to render high quality decisions with respect to complaints filed under the PSEA within a reasonable time frame. One measure of the quality of decisions is the number of applications for judicial review filed with the Federal Court and, of those, the number granted. Whenever new legislation is enacted, such as is the case of the PSEA, more applications for judicial review may be filed as a way to clarify the intent of Parliament and the interpretation to be given to a particular provision. Federal Court decisions are instructive for the parties and the Tribunal even in cases where a judicial review application has been granted and the case is returned to the Tribunal for a new hearing. The Tribunal's reasoning in its analysis of abuse of authority has been maintained. Since 2006, only 1% of the Tribunal's decisions have been quashed by the Federal Court.

The indicators and targets for measuring the quality and time involved in rendering decisions are as follows:

Indicator	Target
Percentage of decisions where reasons are issued within four months of hearing	80%

The Tribunal fell short of its target with respect to the time it takes to issue the Reasons for Decision after a hearing as only 15% of the decisions were rendered within four months of the hearing. On average, Reasons for Decision were issued within eight months of the hearing. This is due to three main factors: the complexity of precedent-setting decisions that were issued, the number of complaints and the limited number of members available to conduct hearings and write decisions, both Reasons for Decision and letter decisions. The Tribunal started the year with two permanent members whose main responsibility was to hear cases and render decisions. Twenty-seven hearings were held across Canada. The two permanent members were also responsible for issuing the majority of the 1,070 letter decisions issued. This responsibility combined with the conduct of hearings and the number of Reasons for Decision each member already had to write resulted in an inability to meet the ambitious target that the Tribunal set for the issuance of its decisions.

Given that at year end the Tribunal had, for the first time since it was created, six full time permanent members, it is anticipated that the time for issuing a final decision will be reduced and that the Tribunal will be in a better position to achieve its goal of rendering decisions within four months of the hearing.

Indicator	Target
Percentage of Tribunal decisions upheld on judicial review	95%

A total of five decisions were referred to judicial review out of the 120 final decisions issued. Two applications were discontinued and two decisions are pending. The Federal Court upheld one application for judicial review. In that case, it was only the corrective measures ordered by the Tribunal that were being challenged. The Tribunal's revocation of the appointment and its finding of abuse of authority by reason of bad faith and personal favouritism were not being challenged. The Tribunal issued a new decision that contained modified corrective measures.

The Federal Court did render six other decisions in the year in review involving applications for judicial review that had been filed in previous fiscal years (2007 to 2010). In one case, it was the corrective measures ordered by the Tribunal that were being challenged. The finding of abuse of authority by reason of bad faith was not challenged. The Court granted the application and set aside the corrective measures ordered by the Tribunal. The Court dismissed two applications and sent back three cases for rehearing by a new member. In one of these cases, the complainants withdrew their complaints so it was not necessary for the Tribunal to rehear the case.

An application for judicial review may be filed in one fiscal year but the Federal Court may render its decision one or two years later. This has been the case with a number of the Tribunal's decisions that have gone to the Federal Court, as indicated in the previous paragraph. Therefore, to truly measure the Tribunal's performance with respect to this indicator, an overview of the Tribunal's performance in terms of the year the applications for judicial review were filed is provided below.

	2007–2008	2008–2009	2009–2010	TOTAL
Number of judicial review applications filed	6	5	5	16
Applications dismissed or moot	1	2	0	3
Applications granted	2	2	1	5
Applications discontinued	3	0	2	5
Applications pending	0	1	2	3
Number of final decisions rendered by Tribunal	157	172	120	449
Percentage of decisions upheld	98.7%	98.8%	99.2%	98.9%

2. Optimal utilization of Tribunal's dispute resolution services by parties

In keeping with the spirit and intent of the Public Service Modernization Act, the Tribunal strives to assist the parties resolve complaints without having to proceed to a hearing.

The indicator and target for measuring the resolution of complaints is as follows:

Indicator	Target
Percentage of mediations resulting in withdrawal	70%

Parties made effective use of the Tribunal's mediation services during 2009–2010 in that the Tribunal's target was exceeded by 17%. Two hundred and one (201) mediation sessions were held during the year and, of these, 175 resulted in a withdrawal of the complaint. This represents an 87% settlement rate.

Outputs

1. Complaints processed

The number of complaints filed appears to have stabilized. The average number of complaints received in the last three years is 772. The Tribunal received 752 new complaints in 2009–2010 but processed 1,156 complaints in total as some complaints were carried over from previous years. The Tribunal closed 681 cases. An average of 676 cases per year, or 88% of all cases, have been closed over the last three years. Procedures and policies have been put in place or modified to enable the Tribunal to process complaints in a timely manner – for example, pre-hearing conferences, paper hearings and mediation. Policies and procedures have been put in place to begin settlement conferences in the upcoming year.

2. Mediation sessions conducted

Under the PSEA, the Tribunal "may provide mediation services at any stage of a proceeding in order to resolve a complaint". Accordingly, the Tribunal has placed considerable emphasis upon mediation and achieved a high rate of success. During the year, a full complement consisting of five staff mediators (four full-time and one casual) and three temporary members was available to provide mediation services.

3. Mediation training courses delivered

The Tribunal has offered mediation training since early 2006. As a result of the continuing interest in and demand for mediation training in the staffing context, the Tribunal is committed to offering its Interest-based Negotiation and Mediation training six times a year in order to meet the needs of its stakeholders.

Lessons Learned

Outreach

As mentioned above, the Tribunal's Interest-Based Negotiation and Mediation (IBNM) training continues to be delivered six times a year. Feedback from these sessions continued to be extremely positive. Participants, however, expressed a need to have more information on the Tribunal's jurisprudence as a means to better understand how the Tribunal has dealt with the concept of abuse of authority. As a result, on the last day of this training the Tribunal's Legal Services now give a two-hour presentation entitled Trends and Jurisprudence. In addition, general information sessions about the Tribunal, including information about its complaint process and mediation services, continued to be given upon request throughout the year. The following chart summarizes the dates, locations and host organizations for the information sessions and mediation courses held during the year:

DATE	HOST ORGANIZATION	LOCATION
April 7, 2009	Human Resources and Skill Development Canada	National Capital Region (NCR)
April 22-24, 2009	IBNM Public Service Staffing Tribunal	NCR
May 14, 2009	Fisheries and Oceans Canada	NCR
June 3-5, 2009	IBNM, Public Service Staffing Tribunal	NCR
October 19, 2009	Canada Employment and Immigration Union	NCR
October 20-22, 2009	IBNM, Public Service Staffing Tribunal	Vancouver, British Columbia
October 30, 2009	Australia Merit Board	NCR
November 2, 2009	Public Service Alliance of Canada	NCR
November 5, 2009	Saint-Paul University	NCR
November 24-26, 2009	IBNM, Public Service Staffing Tribunal	Montréal, Québec
November 27, 2009	Justice Canada	NCR
January 19-21, 2010	IBNM, Public Service Staffing Tribunal	Kingston, Ontario
February 17-19, 2010	IBNM, Public Service Staffing Tribunal	NCR

In addition, the Tribunal's website provides a great deal of information about the Tribunal's processes, including mediation and the decisions rendered by the Tribunal. Assistance to the parties is provided during the course of the complaint process by Registry staff to provide clarification on the Tribunal's policies and procedures.

In light of the success of the Tribunal's dispute resolution services, the Tribunal will ensure that its stakeholders continue to receive timely and relevant information regarding Tribunal decisions, policies and procedures through its communications products and tools, and training program.

Judicial Review of Tribunal Decisions

The few decisions rendered by the Federal Court up to now have been instructive for the Tribunal as the grounds for recourse are completely different in the new PSEA. It is noteworthy that the Tribunal's definition and analysis of the concept of abuse of authority has been maintained. In three cases, the Court disagreed with the Tribunal's analysis of certain facts or evidence and sent the cases back to the Tribunal to "start over". In two cases where the Tribunal's corrective measures were being challenged, the Court clarified the Tribunal's jurisdiction with respect to what it can order.

The Tribunal strives to issue sound and well reasoned decisions. The Tribunal has rendered 494 decisions since 2006. The Federal Court has granted five applications, which represents 1% of the total number of decisions rendered by the Tribunal.

The Tribunal will continue to strive to balance the need to consider and dispose of complaints as informally and expeditiously as possible with its duty to act fairly as a quasi-judicial administrative body.

Timeliness of Tribunal Decisions

A number of factors have an impact upon the time it takes to issue a decision following a hearing by a Tribunal member. These include: the number of complaints received by the Tribunal; the number of members available to conduct hearings and write decisions; the complexity of the case; the possibility of establishing a precedent; and the appointment process for Tribunal members. The Tribunal has no control over any of these factors and can only affect the length of the process by ensuring that appropriate internal mechanisms for producing and reviewing a decision within a reasonable time frame are in place. For this reason, the Tribunal continually monitors its internal processes and makes any adjustments deemed necessary.

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