A federal labour board has dismissed a complaint alleging that Immigration, Refugees and Citizenship Canada abused its authority by using a non-advertised process to appoint a senior immigration officer, finding no evidence that race, colour, or national or ethnic origin played any role in the staffing decision.
The complainant, an IRCC employee who identifies as being of Afro-South American descent, argued that the department discriminated against her when it filled the PM-04 senior immigration officer role in its Reviews and Interventions Unit through a non-advertised process in March 2021, despite an open advertised inventory to which she had applied.
The complaint
The worker contended that the respondent pursued a policy, rule, or practice that deprived her of career advancement opportunities, in contravention of sections 7, 10, and 14 of the Canadian Human Rights Act. She maintained that she had applied to an SIO inventory process in 2019 and was the only eligible employee in her unit whose application had never been evaluated. She sought, among other remedies, the right to compete in the open advertised process and damages for her exclusion.
The department denied that the non-advertised appointment was discriminatory. It submitted that the appointee had originally been selected through an advertised process in 2011, had been placed in an acting SIO role in January 2019, and was extended through the non-advertised process because of her demonstrated performance and the operational demands of the unit.
Scope of the complaint
The board determined that appointments made from the advertised SIO inventory were outside the scope of the complaint, which was formally limited to the non-advertised process. The board noted the complaint process under the Public Service Employment Act is inherently personal and confined to the specific appointment being challenged, and that no formal complaint had been filed regarding the inventory appointments.
The board also declined to treat the proceeding as an inquiry into systemic discrimination within IRCC. While the board acknowledged it may consider systemic evidence as circumstantial support for an individual complaint, it found no sufficient link between the broader materials the worker sought to introduce — including union submissions, employee survey results, and an anti-racism research report — and the specific staffing decision under review.
“The systemic issues that she presented provided contextual background but fell outside the scope of the complaint under review,” the board noted. “They might be more appropriately addressed through other processes specifically designed to examine broad systemic issues.”
The discrimination analysis
Applying the three-part Moore test, the board found the first two elements were met: the worker has a characteristic protected under the Canadian Human Rights Act, and she was not considered for the acting position. However, the complaint failed at the third step. The board found no evidence establishing that the worker’s race, colour, or national or ethnic origin was a factor in the department’s decision to use the non-advertised process.
The board also addressed the worker’s claim that she had been left unevaluated in the SIO inventory due to discrimination. The evidence showed she had applied on Nov. 26, 2019 — the same day the final pull from the inventory was conducted — but after the pull had already taken place, at 11:59 p.m. compared to the pull at 8:58 a.m. A department witness testified that every candidate who applied on time was pulled, regardless of ethnicity, race, or colour.
The department’s justification
The board accepted the department’s explanation for the non-advertised appointment. Evidence established that IRCC faced a significant increase in asylum claims and needed to staff approximately 71 senior immigration officers within a short period. Training a new SIO required between eight and 12 months, and the appointee had already completed training and was described as highly productive.
The board found that the 2021 appointment was an extension of an acting assignment that had originated through an advertised process, and that renewing the appointment of someone already performing the work was reasonable in the circumstances.
“On its own, proceeding by a non-advertised process does not equate to abuse of authority or discrimination,” the board determined.
The board also noted that under section 33 of the PSEA, managers have discretion to use either an advertised or non-advertised process and are not required to consider more than one candidate.
For more information, see (Plaintiff) v. Deputy Head (Department of Citizenship and Immigration), 2026 FPSLREB 7 (CanLII).
