Kowallsky v. Canada (Attorney General), 2006 FC 1458

 

 

 

 

Date: 20061204

Docket: T-2068-05

Citation: 2006 FC 1458

Ottawa, Ontario, December 4, 2006

PRESENT:     The Honourable Mr. Justice O'Reilly

 

 

BETWEEN:

KASIA KOWALLSKY

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               Ms. Kasia Kowallsky began working with Citizenship and Immigration Canada (CIC) in January 1997. In April 1998, she was assigned to a position as a Client Service Representative, at the CR-04 level. Beginning in 2001, CIC began a process of reviewing job classifications. This process resulted in some positions being elevated to a CR-05, but not Ms. Kowallsky’s. Ms. Kowallsky filed several grievances relating to the reclassification process. In 2004, CIC offered Ms. Kowallsky a deployment to another position, also at the CR-04 level. She accepted the offer, but stipulated that she did so “without prejudice” to her outstanding grievance and appeal. She also complained that the deployment was contrary to the Public Service Employment Act, R.S.C. 1985, c. P-33, s. 34.3 (relevant provisions are set out in an Annex).

[2]               A review officer considered and rejected Ms. Kowallsky’s complaint about her deployment. The officer concluded that the deployment was appropriate, within the authority of Ms. Kowallsky’s director and consistent with CIC policy. Ms. Kowallsky asked a Public Service Commission investigator to review that decision. In 2005, the investigator found that she did not have authority to deal with Ms. Kowallsky’s complaint, given that it was based on substantially the same grounds as the grievances she had filed in relation to the reclassification process. Ms. Kowallsky argues that the investigator erred in failing to consider the merits of her complaint and asks me to order another investigator to do so.

 

[3]               While I can find no error in the investigator’s decision, I believe she ought to have adjourned the matter until the grievance process had concluded. Accordingly, I will allow this application for judicial review in part.

I.  Issue

[4]               Did the investigator err where she found that she did not have jurisdiction to deal with Ms. Kowallsky’s complaint?

II.  Analysis

 

[5]               I can overturn the investigator’s decision if I find that she made an error of law.

(a)  The investigator’s decision

 

[6]               At the core of the investigator’s decision is her conclusion that the process for complaining about deployments was not intended to address matters relating to staff relations, including questions about job classifications. Further, she felt she would have to consider and decide issues that were already the subject of Ms. Kowallsky’s prior grievances. She was concerned that this could give rise to the possibility of inconsistent decisions and undermine managers’ authority under the grievance process.

 

(b)  The investigator’s authority to deal with complaints about deployment

 

[7]               A person who has been deployed to another position in the public service can complain to his or her deputy head that the deployment was unlawful or the product of an abuse of authority (s. 34.3(1)). If the complainant is not satisfied with the deputy head’s decision, he or she can refer the matter to the Public Service Commission, which will appoint an investigator to deal with it (s. 34.4(1)). The investigator must give the employee and the deputy head an opportunity to make submissions and prepare a written report of his or her findings (s. 34.4(3),(4)). Still, the key question is whether the deployment was unlawful or abusive.

 

(c)    Ms. Kowallsky’s submissions to the investigator

 

[8]               Most of Ms. Kowallsky’s submissions amount to allegations that the re-classification process was flawed. There is only one complaint about the deployment itself. Ms. Kowallsky asked the investigator to consider the following question:

 

Did the employer violate the Act/Regulations by imposing demotion through deployment on individuals who would have qualified for reclassification and appointment . . . had it not been for the employer’s failure to disclose responsibilities and positions those individuals occupied prior, during and after the National Classification Review project?

 

[9]               It seems to me that Ms. Kowallsky’s question really is whether the employer, having conducted an improper classification exercise and denied employees an upgrade to the CR-05 level, attempted to avoid the consequences of its misconduct by deploying those employees to parallel CR-04 positions. It is clear that Ms. Kowallsky’s complaint about deployment is dependent on the truth of her allegations about the reclassification process. In order for the investigator to decide whether the deployment contravened the Act, she would have to determine first whether Ms. Kowallsky and her colleagues had been wrongfully denied reclassification because of a flawed process.

 

(d)  Conclusion

 

[10]           In these circumstances, the investigator’s conclusion that it was not her role to decide matters that were the subject of separate ongoing grievances was correct. Ms. Kowallsky made no independent allegation that the deployment was improper – it could only be considered improper, if at all, once the reclassification process had been shown to be improper. And that was the subject of separate proceedings.

 

[11]           If Ms. Kowallsky failed in her arguments about reclassification, her complaint about deployment would have no foundation. However, if she succeeded in her grievance by proving that the reclassification process was badly conceived and implemented, her complaint about the deployment might still have some validity. She might be able to argue, for example, that the deployment constituted a means of circumventing the alleged errors in the reclassification process and minimizing the duration of the pay increase to which she might otherwise have been entitled.

 

[12]           Accordingly, the investigator was correct not to have explored the issues that were the subject of separate grievances. However, at the same time, Ms. Kowallsky should have an opportunity to argue, if she is successful in her grievances, that the deployment was unlawful or abusive. The investigator should have adjourned the proceedings (as she was initially inclined to do) until Ms. Kowallsky had obtained a final decision in relation to her grievances. Accordingly, I will order an investigator to reconsider Ms. Kowallsky’s complaint about her deployment, but only if she is successful in her grievances relating to the reclassification. Given that success on this judicial review is divided, I will make no order as to costs.

 

 

JUDGMENT

            THIS COURT’S JUDGMENT IS that:

 

1.                  This application for judicial review is allowed in part. If Ms. Kowallsky is successful in her grievances relating to the reclassification, an investigator should reconsider whether her deployment violated s. 34.3(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33.

2.                  There is no order as to costs.

 

 

“James W. O’Reilly”

 

Annex

Public Service Employment Act, R.S.C. 1985, c. P-33   Complaint to deputy head   34.3 (1) An employee who is deployed and any other employee in the work unit to which the deployment is made may, within such period and in such manner as the Treasury Board may provide for, complain to the deputy head concerned that the deployment was not authorized by, or made in accordance with, this Act or constituted an abuse of authority.   Exceptions   (2) Subsection (1) does not apply in respect of the deployment of an employee who is in the executive group or who occupies a position in an occupational group or part thereof in respect of which regulations have been made under subsection 37.1(2). Action by deputy head   (3) On receiving a complaint under subsection (1), the deputy head shall review the deployment in such manner as the Treasury Board may direct and, after considering the results of the review, shall take such corrective action, including revocation of the deployment, as the deputy head considers appropriate. Work units   (4) A deputy head may specify work units for the purposes of subsection (1). Added 1992, c. 54, s. 22.   Referral to the Commission     34.4 (1) An employee who lodged a complaint under subsection 34.3(1), or whose deployment is the subject of such a complaint, and who is not satisfied with the disposition of the complaint or any corrective action taken in respect thereof, may, within the period provided for by the regulations of the Commission, refer the complaint to the Commission   …     Conduct of investigation   (3) An investigator designated under subsection (2) shall conduct the investigation in such manner as the Commission may prescribe and give the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head an opportunity to be heard. Report   (4) On completion of the investigation, the investigator shall prepare and send to the employee who referred the complaint to the Commission, the employee who was deployed and the deputy head a report in writing setting out such findings and recommendations with respect to the deployment as the investigator sees fit. Added 1992, c. 54, s. 22.

Loi sur la fonction publique, L.R.C. 1985, ch. P-33   Plainte   34.3 (1) Le fonctionnaire qui est muté, ainsi que tout autre fonctionnaire du service où il l'a été peut, dans le délai et selon les modalités fixés par le Conseil du Trésor, déposer une plainte auprès de l'administrateur général compétent au motif que la mutation n'est pas autorisée par la présente loi ou n'a pas été effectuée conformément à celle-ci, ou qu'elle constitue un abus de pouvoir. Exceptions   (2) Le paragraphe (1) ne s'applique pas à la mutation d'un fonctionnaire du groupe de la direction ni à celle d'un fonctionnaire d'un groupe professionnel ou d'un secteur de ce groupe visés par les règlements d'application du paragraphe 37.1(2). Révision   (3) Sur réception de la plainte, l'administrateur général révise la mutation selon les modalités fixées par le Conseil du Trésor et, selon les résultats, prend les mesures de redressement qu'il juge indiquées, y compris l'annulation de la mutation. Services   (4) L'administrateur général peut, pour l'application du paragraphe (1), préciser la notion de service. Ajouté 1992, ch. 54, art. 22.   Renvoi à la Commission     34.4 (1) Le fonctionnaire qui n'est pas satisfait des résultats obtenus à la suite d'une plainte déposée en application du paragraphe 34.3(1) peut, dans le délai prévu par règlement de la Commission, renvoyer la plainte à la Commission.         […]   Conduite de l'enquête   (3) L'enquêteur procède de la manière déterminée par la Commission et donne à l'auteur du renvoi, au fonctionnaire muté et à l'administrateur général l'occasion d'être entendus.   Rapport   (4) Au terme de l'enquête, l'enquêteur établit un rapport assorti de ses conclusions et recommandations touchant la mutation et le fait parvenir à l'auteur du renvoi, au fonctionnaire muté et à l'administrateur général. Ajouté 1992, ch. 54, art. 22.

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-2068-05      

 

STYLE OF CAUSE:                         KOWALLSKY. v. ATTORNEY GENERAL OF CANADA

                                               

PLACE OF HEARING:                    Vancouver, British Columbia

 

DATE OF HEARING:                      August 17, 2006

 

REASONS FOR JUDGMENT

 AND JUDGMENT:                         O’Reilly J.

 

DATED:                                             December 4, 2006

 

 

 

APPEARANCES:

 

                                                                                               

                                                                        Kasia Kowallsky          FOR THE PLAINTIFF/SELF-REPRESENTED

                                                                                               

 

Graham Stark                                                   FOR THE DEFENDANT

                                                                               

 

 

SOLICITORS OF RECORD:

 

KASIA KOWALLSKY                                  FOR THE PLAINTIFF/SELF-REPRESENTED

Vancouver, B.C.                                                                     

tOTTT

 

JOHN H. SIMS, Q.C.                                     FOR THE DEFENDANT

Deputy Attorney General of Canada

Vancouver, B.C.