Date: 20060609
Docket: T-1320-05
Citation: 2006 FC 724
Ottawa, Ontario, June 9,
2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
DENISE LAPOINTE, PIERRE
TURMEL, SUZANNE LAJEUNESSE,
MARIE-HÉLÈNE GIROUX, MICHEL BEAUCHAMP,
ROLLAND LADOUCEUR, DIANNE TORDORF, IRÈNE
DICAIRE,
PAUL KYBA, MARC ALAN TESSLER, LEEANN I. KING,
DAPHNE SHAW DYCK, OTTO NUPPONEN, CARMEN
DECARLO,
ILZE DECARLO, FREDERICA DOUGLAS, MARILOU
FUNSTON,
SILVANA GRATTON, OSKANA KOWALYK, AINA
MARTENS,
ROBERT MURRANT, DENIS PAXTON, CATHIE SIMMIE,
WILLIAM WILLOUGHBY, KEN THOMPSON, LIZ LASOWSKI,
and ANGELA MAILHIOT
Applicants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
as represented by TREASURY BOARD
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of the Deputy Head’s
Nominee, Immigration and Refugee Board, dated June 24, 2005 wherein the
Applicants’ classification grievance was rejected and a decision and
recommendation of a Classification Grievance Committee following a hearing conducted
on February 1, 2005 was followed.
[2]
The
Applicants are Adjudicators, now called Members, employed by the Immigration
and Refugee Board. Commencing in 2002 the Applicants sought reclassification of
their group and level with the civil service to that of PM-06. A first hearing
was held in February 2003 which led to a recommendation that they be classified
at the PM-05 level. Judicial review was sought and an Order of this Court dated
February 18, 2004 was given whereby that decision was set aside and the matter
was remitted to a Committee differently constituted. A second hearing was
conducted and the new Committee in a decision signed June 2005, and agreed to
by the Deputy Head’s Nominee on 24 June, 2005, again recommended a
classification at the PM-05 level. It is this decision that is to be reviewed
here.
[3]
The
Applicants have restricted their submissions to one issue only, the
recommendation of the Committee that of the level ascribed to the position
occupied by the Applicants in respect of the “Impact” category. The
Committee recommended Degree 3, the Applicants sought at Degree 4. Degree 4
would have ensured a classification of PM-06 for the Applicants. Both parties
agree that the level of deference to be afforded to the recommendation of the
Committee is patent unreasonableness, the highest level of deference. I find,
for the Reasons that follow, that the reasons given by the Committee for their
recommendation was patently unreasonable.
[4]
The
grievance procedure finds its origins in section 11.1(1)(b) of the
Financial Administration
Act,
R.S.C. 1985, c. F-11 wherein the Treasury Board
can provide for the classification of
positions and employees of the public service. In
brief, a process has been established
whereby an employee or group of employees
can file a grievance seeking
re-classification. A Committee is struck to hear
this grievance, the burden being on the
employee(s) to establish that their present classification is erroneous (Argyracoupoulou
v. Canada (Treasury
Board)
[2003] F.C.J. No. 1641 at para. 19). A hearing is conducted following which the
Committee makes a determination as to the appropriate level, which
determination is recommended to the Deputy Head’s Nominee who either agrees
with the recommendation whereupon it becomes final and binding or disagrees
whereupon detailed reasons for that disagreement must be provided. Here the
Deputy Head simply agreed with the recommendation without substantive comment.
[5]
The
Committee is provided with a Classification Standard for use in arriving at a
recommendation. In the Introduction, that Standard states, inter alia:
This standard describes the
plans to be used in classifying and evaluating positions in the Programme
Administration Group.
***
Point rating is an analytical,
quantitative method of determining the relative value of jobs. It is
particularly suited to heterogeneous occupational groups in which jobs consist
of varied combinations of tasks. Essentially, point-rating plans define
characteristics or factors common to the jobs being evaluated. They define
degrees of each factor and allocate point values to each degree. The total
value determined for each job is the sum of the point values assigned under all
the factors.
All methods of job evaluation
require the exercise of judgment and the orderly collection and analysis of
information in order that consistent judgments can be made. A point-rating
method facilitates rational discussion and resolution of differences in
determining the relative value of jobs.
[6]
Four
factors are set out which are said not to describe all aspects of jobs, but
deal only with those characteristics that can be differed and distinguished and
that are useful in determining the relative value of jobs. Those factors are:
Knowledge; Decision Making; Operational Responsibility; and Contacts. Within “Decision
Making” are two categories, Scope and Impact. The parties are agreed as to
the Committee’s assessment that level D for Scope is appropriate. As to Impact,
the Applicants argue that Degree 4 is appropriate, not Degree 3 as assigned by
the Committee.
[7]
The
Classification Standard provides several Bench-Mark Position Descriptions, that
is, descriptions of existing positions to which a level has already been
ascribed. The Standard says as to Bench-Marks:
Bench-mark position descriptions
are used to exemplify the degrees of each factor or element. Each description
consists of a job summary and specifications describing each of the factors and
elements as it appears in the position. The Bench-mark positions have been
evaluated, and the degree and point values assigned to each factor or element are
shown in the specifications.
The rating scales identify the
bench-mark position descriptions that exemplify each degree. These descriptions
are an integral part of the point-rating scales and are used to ensure
consistency in applying the scales.
[8]
The
Standard sets out a Classification Plan. Under Decision Making, it says as to “Impact”:
“Impact” measures the effect
of decisions on program(s) or program delivery. It also measures the effect of
decisions on the public, on industry or on other government or private
agencies. The impact of decisions cannot extend beyond the area(s) of
consideration, i.e., inadvertent impacts are not to be rated.
[9]
The
Degree to be assigned to differing degrees of Impact are set out:
Impact
1. Decisions
affect own work, individual clients, single cases or otherwise have restricted
application. Proposals or recommendations impact on the work of own section or
unit, or have wider application, e.g., groups or classes.
2. Decisions
impact on the work of the section or unit, or affect groups or classes of
people or cases, or otherwise have wider application. Proposal or
recommendations impact on established operating guidelines.
3. Decisions
impact on operating guidelines, or have wide spread application, e.g. specified
geographical areas or industrial sectors, or impact on significant departmental
entities. Proposals or recommendations impact on program policy formulation,
program design or operation.
4. Decisions
impact on program or operational policy or design, or on major aspects of
national programs, or on major departmental entities.
[10]
The
use of the Plan including Bench-Marks is set out at page 2 of the Standard:
Use of the Position Classification Plan
1.
Allocation
of the position to the category and the group is confirmed by reference to the
definite and the description of inclusions and exclusions.
2.
The
position description is studied to ensure understanding of the position as a
whole and of each factor. The relation of the position being related to
positions above and below it in the organization is also studied.
3.
Tentative
degrees of each factor in the job being rated are determined by comparison with
degree definition in the rating scales. Uniform application of degree
definitions requires frequent reference to the description of factors and the
notes to raters.
4.
The
description of the factor in each of the bench-mark positions exemplifying the
degree tentative established is compared with the description of the factor in
the position being rated. Comparisons are made also with descriptions of the
factor in bench-mark positions exemplifying the degrees above and below the one
tentatively established.
5.
The
point values for all factors are added to determine the tentative total point
rating.
6.
The
position being rated is compared as a whole to position descriptions to which
similar total point values have been assigned as a check on the validity of the
total rating.
[11]
Thus
the Committee is directed to examine the position in question, set tentative
degrees with respect to each factor, and compare them with bench-mark positions
as to each category. The categories are then assembled, a total of all values
ascribed is made and again checked against the bench-marks.
[12]
At
issue here is what the Committee did with respect to Impact as set out in its
Report. The Report begins by stating that the Committee looked at the four
definition statements.
[13]
The
Committee then reviewed three positions, BM-4, BM-7 and BM-11 the first of
which is found to be “more demanding” than those of the Applicants, a
term not found in the Standard, the other two were said to have “larger
impact” than those of the Applicants. The Committee then made this finding:
The Classification Grievance
Committee Members recognize that the Adjudicator has a significant impact on
the life, liberty and security of individuals; a major bearing on Canadian
attitudes toward Immigration; impact on the Refugee Protection Division; in
that findings of inadmissibility under terrorism, subversion, crimes against
humanity, etc. allegations, result in ineligibility to pursue a refugee claim
in Canada; impact on program or operational policy, on major aspects of
national programs and on major departmental entities when the incumbent
analyzes and comments on draft policies and procedures, and from the decisions
that he/she makes throughout the hearings.
[14]
The
wording of this finding fits squarely within the language of Degree 4 for
Impact, the highest level. The Committee thus had, first looked at the four
categories, looked at three bench-marks, and made a clear and unequivocal
finding, the Applicants position fell within Degree 4 for Impact.
[15]
Puzzlingly,
and Respondent’s counsel admits at least that the Committee was guilty of “poor
draftsmanship” the Committee goes on to consider three other bench-marks,
BM-27, BM-24 and BM-22 and another position, apparently not a bench-mark, but
simply described as “Appeals Officer”.
[16]
The
Committee concluded, without explaining why, having said that the Applicants’
position falls within Degree 4, that their position simply should be afforded
Degree 3:
The Classification Grievance
Committee Members looked at the Classification Rationale for the Member of the
Immigration Division (Ex B-4 p.000034-38) provided by the Grievers at the
Impact element and disagree with the Grievers’ evaluation at degree 4. The
Classification Grievance Committee Members are of the opinion that the
Adjudicator position is more comparable to Degree 3 as explained in the above
comparisons of this report.
[17]
There
is no explanation given in the comparisons, nor is there any attempt to
rationalize them with the finding respecting Degree 4 namely that the Applicants
fit squarely within the definition.
[18]
At
the end of its decision on Impact the Committee provides a “throw away”
paragraph as to Trade-Mark Opposition Board Members:
The Classification Grievance
Committee Members have not been able to value the differences raised by the
Grievers between the Adjudicator position and the Trademark Opposition Board
Member as no classification rationale for this position has been provided.
[19]
The
Committee did not say what it meant by “classification rationale”. It is
evident from the decision of this Court in Hertzig v. Canada (Industry Canada), Feb. 7,
2001, 2001 F.C.T. 39 that the Trade-Mark Opposition Board Members are
classified as PM-06 and were seeking re-classification as LA-02. As to “Impact”
the Committee could readily consider how decisions respecting registrability of
trade-marks on the one hand and admission into or rejection from Canada of persons
on the other, would compare. Little, if anything, would be required for that
purpose.
[20]
A
review of the Committee reasons as to Impact inevitably lead to a conclusion
that the determination as to Degree 3 was patently unreasonable having regard
to the clear finding that all criteria for Degree 4 were met. No explanation
was given for departing from that finding. Further, the rejection out of hand
of comparison with Trade-Mark Opposition Board Members for the purpose of
assessing Impact, without proper consideration of even that which was patently
obvious, was patently unreasonable.
[21]
As
a result, the decision and recommendation must be set aside. The Applicants, at
the hearing, asked that the matter be remitted to the Nominee, not the
Committee with a direction that Impact be set at Degree 4. This relief is not
that which was requested in the Notice of Application. There was no agreement
by the Respondent to accept an amendment at this late date.
[22]
Therefore,
the decision of the Nominee is set aside, the matter is sent back to a
Committee to be differently constituted. The new Committee is directed, as
provided by section 18.1(3) of the Federal Courts Act to implement the
finding by the present Committee, that the criteria established at Degree 4
respecting Impact have been met by the Applicants. Costs will be to the
Applicants to be assessed at the middle of Column III.
JUDGMENT
UPON
APPLICATION made to this Court on Wednesday the 7th day of
June, 2006 for judicial review of a decision of the Deputy Head’s Nominee,
Immigration and Refugee Board, dated June 4, 2005, rejecting the Applicants’ grievance
as to re-classification;
AND UPON reviewing
the Records filed herein and hearing oral submissions of counsel for the
parties;
AND FOR the Reasons
provided herewith;
THIS COURT
ADJUDGES that:
1.
The
Application is allowed;
2.
The
decision of the Deputy Head’s Nominee dated June 24, 2005 is set aside and the
matter sent back for re-determination by a Committee, differently constituted,
with a direction that such Committee have regard to these Reasons and the
factual finding of the previous Committee that the Applicants’ position falls
within the description afforded to Degree 4 of the Classification Standards for
Impact; and
3.
Costs
are awarded to the Applicants to be assessed at the middle of Column III.
"Roger
T. Hughes"
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