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2006 PSST 0008
Abuse of authority; burden of proof; discretion.
The complainant alleged that the assessment board abused its authority by being very lenient in assessing the person to be appointed. The complainant argued that the respondent had improperly exercised its discretion and abused its authority, and that this did not necessarily require intention.
The respondent and the Public Service Commission argued that abuse of authority in the context of the PSEA requires improper intention, including acting in bad faith or irrelevant considerations.
The Tribunal noted that in accordance with the general rule in civil courts and arbitration hearings, it is the person making the assertion that bears the burden of proving it. Therefore, the complainant has the burden of proof.
The Tribunal found that its mandate cannot be circumscribed by a definition of abuse of authority that requires the element of intention. The Tribunal determined that the whole scheme of the PSEA must be considered. To require that a finding of abuse of authority be linked to intent would run contrary to the purpose of the PSEA. Referring to David Philip Jones and Anne S. de Villars in the Principles of Administrative Law (Toronto: Thomas Carswell, 2004), the Tribunal highlighted five categories of abuse that may serve as a test for abuse of authority in the context of the PSEA:
Nonetheless, the Tribunal was not satisfied that the complainant had established, on the balance of probabilities that the assessment board acted on inadequate material in screening in the appointee and screening out the complainant.