Date:
20060622
Docket:
T-885-05
Citation:
2006 FC 796
Ottawa,
Ontario, the 22nd day of June 2006
Present: The Honourable Mr. Justice Blanchard
BETWEEN:
SERGE
DUBÉ AND JUDITH GERMAIN
Applicants
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS
FOR ORDER AND ORDER
1.
Introduction
[1] The
case at bar concerns an application for judicial review filed pursuant to
section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7. The
applicants, Serge Dubé and Judith Germain, are seeking an order quashing the
decision by Linda Gobeil, Assistant Deputy Minister, Human Resources, Financial
and Administrative Services, in the federal Department of Human Resources and
Skills Development, rendered on April 8, 2005. By that decision Ms. Gobeil dismissed
the grievances filed by the applicants whereby they alleged that their employer
had failed to carry out its commitment to give them recall priority in off
seasons.
2.
Facts
[2]
At all relevant times, the applicants were
employed by the federal Department of Human Resources and Skills Development
(the Department) and each held the position of customer service officer. Since
May 2000, Ms. Germain has obtained several term contracts in seasonal positions
at the PM-01 group and level. Mr. Dubé has held an acting customer service
officer position since February 2001.
[3]
In March 2002, the Department offered the
applicants permanent seasonal positions at the PM-01 group and level in the
Department’s regional office in Donnaconna. The parties did not provide the
Court with the employment offer letter signed by the applicants respecting
these positions. According to the affidavit of Claire Harvey, the applicants’
manager at the time, these appointments took effect on March 25, 2002 and the
agreed periods of employment were from mid-June to mid-September 2002 and from
early November 2002 to the end of January 2003.
[4]
When they were hired, the Department gave the
applicants a letter of employment and a copy of the document entitled [translation] “Seasonal Employment Guidelines”
(the “Guidelines” document). This document stated that seasonal employment is a
flexible measure used to meet operational requirements when the workload
variation occurs in repetitive cycles. In addition, the “Guidelines” document
stated that seasonal employees were appointed for periods totalling less than
12 months in a year and seasonal employees held permanent employment status,
subject to the collective agreement and the terms and conditions of employment
in the same way as all other employees whose status is permanent.
[5]
Regarding employment in off periods, point 6 of
the “Guidelines” document reads as follows:
[translation]
During the off
season a permanent seasonal employee may be hired in a different position with
a different status. Such employee is then subject for that period of employment
to the terms and conditions of employment and the relevant collective agreement
for the position during the said period. The employer’s policy in relation to
the second employment applies. (Reference omitted)
When a seasonal
employee is unemployed, he or she may be hired for a different position with a
different status. In order to hold employment other than the position to which
he or she is appointed as a permanent seasonal employee, the employee shall
have all the necessary skills and be able to do his duties forthwith.
Local management
undertakes to give priority to seasonal permanent employees before proceeding
with temporary staffing provided they meet the requirements of the position as
described in the preceding point.
[6]
Both applicants submitted that the “Guidelines”
document was part of their terms and conditions of employment. In addition, the
applicants submitted that the document and the statements of Ms. Harvey
showed that the Department had undertaken to give the applicants employment
priority during off periods. The applicants argued that, despite its
commitment, the Department had hired other persons before them in violation of
their right to be recalled. The applicants subsequently filed several
grievances alleging that the Department had broken its commitment to give them
recall priority.
3. Grievances
[7]
The applicants argued that, in the fall of 2002,
the Department filled its operational requirements with interim hirings,
transfers and assignments from higher levels. Mr. Dubé filed his first
grievance on November 1, 2002 and two other grievances on November 5, 2002.
Ms. Germain filed her first grievance on November 21, 2002. In these
reasons for order, the grievances will be referred to as “the 2002 grievances”.
In their grievances, the applicants submitted that the Department had not
observed its commitment to consider them for recall during off periods. The
applicants further objected to the requirement that they take part in selection
competitions in order to qualify for PM-01 group and level positions, despite
the fact that they had already qualified for those positions. The applicants
argued that the Department was bound by Ms. Harvey’s oral commitment, by the
“Guidelines” document and by the Public Service Commission’s values and ethics
code (the values and ethics code). Therefore, the Department should have
offered the available work to the applicants.
[8]
In the 2002 grievances the applicants sought inter
alia the following relief:
[translation]
(1) that the Department give the applicants
priority consideration for any recall to work during their time without a
contract for the Department in respect of PM‑01 positions and any other
positions in the organization;
(2) that the Department give the applicants
priority consideration for any permanent appointment to a PM-01 position; and
(3)
that the Department give the applicants
confirmation that it is not necessary to participate in level PM-01 selection
competitions in order to be placed on an eligibility list. The applicants also
filed further grievances on November 20, 2003.
[9]
After having learned in 2003 that the Department
had hired part-time PM-01 staff during the off periods of their seasonal
employment contracts, the applicants filed two further grievances (“the 2003
grievances”). In the latter grievances they sought the following relief: that
the Department pay them lost salary and adjust their retirement fund, salary
level, vacation and sick leave accordingly.
[10]
Finally, Mr. Dubé filed a grievance in 2004
after the Department hired students to meet its operational requirements in
several offices despite the fact that Mr. Dubé was not working. No copy of this
last grievance or the details of the grievance or the relief sought was given
to the Court.
4. Legislation
[11]
The applicants filed their grievances pursuant
to subsection 91(1) of the Public Service Staff Relations Act, R.S.C.
1985, c. P-35 (PSSRA). That provision reads as follows:
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91. (1)
Where any employee feels aggrieved
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91. (1)
Sous réserve du paragraphe (2) et si aucun autre recours administratif
de réparation ne lui est ouvert sous le régime d’une loi fédérale, le
fonctionnaire a le droit de présenter un grief à tous les paliers de la
procédure prévue à cette fin par la présente loi, lorsqu’il s’estime
lésé :
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(a) by the interpretation or
application, in respect of the employee, of
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a) par
l’interprétation ou l’application à son égard :
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(i) a provision of a statute, or of a
regulation, by‑law, direction or other instrument made or issued by the
employer, dealing with terms and conditions of employment, or
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(i) soit d’une disposition législative,
d’un règlement – administratif ou autre –, d’une instruction ou
d’un autre acte pris par l’employeur concernant les conditions d’emploi,
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(ii) a provision of a collective
agreement or an arbitral award, or
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(ii) soit d’une disposition d’une
convention collective ou d’une décision arbitrale;
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(b) as a result of any occurrence
or matter affecting the terms and conditions of employment of the employee,
other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative
procedure for redress is provided in or under an Act of Parliament, the
employee is entitled, subject to subsection (2), to present the grievance at
each of the levels, up to and including the final level, in the grievance
process provided for by this Act.
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b) par
suite de tout fait autre que ceux mentionnés aux sous‑alinéas a)(i)
ou (ii) et portant atteinte à ses conditions d’emploi.
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[12]
Under section 100 of the PSSRA, the Public
Service Staff Relations Board may make regulations in relation to the procedure
applicable to grievances. Under those regulations, an employer may establish an
internal grievance procedure, but the procedure must include a first level and
a final level and may not have more than four levels. In addition,
subsection 100(4) of the PSSRA provides that an employer may designate the
person whose decision on a grievance constitutes the final or any level in the
grievance process.
[13]
The internal procedure established by the
Department for processing grievances by its employees consists of three levels,
namely the first level of management, followed by an intermediary level and
finally the last level, involving the Assistant Deputy Minister.
4. Impugned
decision
[14] The
applicants’ grievances were heard at the three levels of the Department’s
internal procedure and at each level the responsible decision-maker dismissed
their grievances. The decision impugned by the instant application for judicial
review is that by the Assistant Deputy Minister Ms. Gobeil, which was made at
the final level of the Department’s internal procedure. Ms. Gobeil made one
decision disposing of all of Mr. Dubé’s grievances and a second decision disposing
of all of Ms. Germain’s grievances.
[15] Firstly,
Ms. Gobeil found that, under subsection 91(1) of the PSSRA, she did not have
jurisdiction to hear the applicants’ grievances as their grievances [translation] “did not relate to the
interpretation of a clause in the collective agreement or working conditions”.
Nevertheless, she addressed the grievances on the merits. Ms. Gobeil held
that the “Guidelines” document provided that local management undertook only to
give priority to employees who were qualified on the eligibility list and that
this practice was consistent with the Public Service Commission’s values and
ethics code. As the applicants did not take part in the selection competitions,
management could not assume that their candidacy met the requirements of the
position.
[16] Although
in her decision Ms. Gobeil did not expressly approve the decisions rendered at
the lower levels of the internal grievance resolution procedure, the decisions
at all levels are interrelated and cannot be dealt with in isolation. Moreover,
in this application for judicial review the applicants are challenging the
holding to the effect that the Department was under no commitment to give the
applicants recall priority. That was the holding of the decision‑makers
at the lower levels, not of Ms. Gobeil. In such circumstances, therefore, it is
necessary to consider the decisions made at all levels. For the purposes of the
following analysis, the application for judicial review will deal with the
Minister’s decision, including the findings and holdings made at all levels.
[17] In
response to the 2002 grievances at the first level, Ms. Harvey, the
Department’s Service Delivery Manager in Québec, found that local management
had made no commitment to give appointment priority to the applicants during
off seasons. In her decision of February 6, 2003, Ms. Harvey
also added that the “Guidelines” document did not constitute terms or
conditions of employment, but was only intended to provide information on the
differences between seasonal and full-time employment with regard to benefits
and the application of the collective agreement. The only commitment that the
Department had made to the applicants, Ms. Harvey found, was in the
employment offer letter. Further, Ms. Harvey said that [translation] “. . . giving appointment priority to employees
with a seasonal status would be contrary to the legislation and regulations
applicable in the Federal Public Service”.
[18] On
January 12, 2004, Lucie Tremblay, the Department’s Service Delivery Manager in
Québec, rendered a decision at the first level on the 2003 grievances. She
agreed with Ms. Harvey that local management had never given any
commitment to the applicants to give them hiring priority in their off season
and that the only commitment the Department had made to the applicants related
to their seasonal positions in the Department’s regional office in Donnaconna
of a duration of six months a year. Ms. Tremblay also said that the
“Guidelines” document was a local policy on priority only in the Department’s
regional office in Saguenay‑Lac St. Jean.
[19] At the
second level of the internal grievance resolution procedure
Danielle Vincent, the Assistant Deputy Minister, considered all the
grievances of each applicant as a whole. She confirmed that the “Guidelines”
document did not constitute a commitment to give the applicants priority and
the only commitment made was to be found in the terms specified in the letter
of employment. Further, Ms. Vincent concluded that local management was
justified in using selection methods with a competition and that a seasonal
employee held no employment priority status for any other position.
5. Issues
[20] Although
several issues were raised by the applicants, I would state the relevant issues
as follows:
(1)
Were the grievances admissible under section 91
of the Public Service Staff Relations Act?
(2)
Was the Minister required to give the applicants
recall priority?
6. Standard of review
[21] Under the case law of the Supreme Court of Canada, it is
the pragmatic and functional analysis which applies when decisions of
administrative agencies are reviewed: see for example Pushpanathan v.
Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Dr.
Q v. College of Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226; and New Brunswick Law Society v. Ryan, [2003]
1 S.C.R. 247. The pragmatic and functional approach requires analysis
of the following four background factors:
1. the presence or absence in the legislation of a privative clause
or right of appeal;
2. the expertise of the administrative agency as compared with
the reviewing court on the point at issue;
3. the
purpose of the Act as a whole and the provision in particular; and
4. the
nature of the problem – law, fact or mixed law and fact.
[22] The
interaction between these four factors determines the degree of deference that
should be accorded to the administrative decision itself. That deference should
also be related to three standards of review, correctness, reasonableness simpliciter
and patently unreasonableness decision: Ryan, supra, at paragraph
24. I will now proceed to analyse these four factors.
[23] In this
case, the impugned decision concerns two findings: (a) the Minister’s authority
to hear the applicants’ grievances; and (b) whether the Department undertook to
give the applicants priority. The appropriate standard of review must be
determined for each of these questions.
1. Nature of appeal or review procedure
[24] First,
under subsection 96(3) of the PSSRA the decision at the final level of a
grievance is subject to a privative clause:
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96. (3) Where a grievance has been presented up to and including the
final level in the grievance process and it is not one that under
section 92 may be referred to adjudication, the decision on the
grievance taken at the final level in the grievance process is final and
binding for all purposes of this Act and no further action under this Act may
be taken thereon.
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96. (3) Sauf dans le cas d’un grief qui peut être renvoyé à
l’arbitrage au titre de l’article 92, la décision rendue au dernier
palier de la procédure applicable en la matière est finale et obligatoire, et
aucune autre mesure ne peut être prise sous le régime de la présente loi à
l’égard du grief ainsi tranché.
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Subsection 96(3)
of the PSSRA provides that, except for grievances that under section 92 may be
referred to adjudication, a decision on a grievance taken at the final level in
the grievance process is final and binding for all purposes of the Act and no action
specified in the Act may be of assistance to the parties. Under subsection
92(1), a grievance may be referred to an adjudicator only when the grievance
concerns the interpretation or application of a collective agreement or
disciplinary action resulting in the suspension of an employee or a financial
penalty. It is clear that the grievances at issue here do not fall within the
category covered by subsection 92(1) of the PSSRA and, therefore, an
adjudicator would have no authority to consider such grievances.
[25] In view
of the presence of a privative clause in subsection 96(3) of the PSSRA, the
Minister must be accorded a high degree of judicial deference.
2. Tribunal’s expertise as compared with the Court
[26] As
McLachlin C.J. of the Supreme Court of Canada noted at paragraph 28 in Dr Q,
supra, legislatures will sometimes remit an issue to a decision-making body
that has particular topical expertise or is adept in the determination of
particular issues. Comparing the relative expertise of the administrative
decision-maker with that of the Court requires considering three points. The
Court must:
(a)
characterize the expertise of the administrative
decision-maker;
(b)
compare the administrative decision-maker’s
expertise with its own expertise;
(c) identify the nature of the specific issue before the
administrative decision-maker relative to this expertise.
When the
administrative decision-maker in some way has greater expertise than the Court
and the issue falls within that expertise, therefore, a higher degree of
deference is required.
[27] The
first issue in this case concerns the Minister’s authority to hear the
applicants’ grievances. That issue essentially raises a question of statutory
interpretation, which does not fall within the Minister’s expertise. Therefore,
a lower degree of judicial restraint would be warranted.
[28] As to
the second issue, in my view such a determination falls within the Minister’s
powers. The Minister has a thorough knowledge of the policies, procedures and
rules of the Department in question for filling positions during the off
season. The question of what terms and conditions are part of the applicants’
employment is thus clearly a matter for the Minister’s expertise. Therefore,
the Minister’s degree of expertise compared with that of the Federal Court
leads this Court to exercise some restraint.
3. Purpose of the Act
[29] In the
third part of the pragmatic and functional analysis, the Court must consider
the purpose of the system created by the Act as a whole as well as the
particular provisions involved in this review application. In Dr Q, supra,
at paragraphs 31 and 32, McLachlin C.J. commented on the difference between a
“polycentric” purpose and a “jurisdictional” purpose regarding judicial
restraint.
31 A
statutory purpose that requires a tribunal to select from a range of remedial
choices or administrative responses, is concerned with the protection of the
public, engages policy issues, or involves the balancing of multiple sets of
interests or considerations will demand greater deference from a reviewing
court . . .
32 In
contrast, a piece of legislation or a statutory provision that essentially
seeks to resolve disputes or determine rights between two parties will demand
less deference. The more the legislation approximates a conventional
judicial paradigm involving a pure lis inter partes determined largely
by the facts before the tribunal, the less deference the reviewing court will
tend to show.
[30] The
object of the PSSRA is to create a complete system for dispute resolution in
labour relations, including the working conditions of Public Service employees:
Scheuneman v. Canada (Attorney General) (T.D.), [2000] 2 F.C.
365. The object of subsection 91(1) of the PSSRA is to resolve grievances
through an internal procedure of the employer, and if applicable, an outside
adjudicator. Essentially, this section of the Act reflects classic judicial
considerations. Taken together, the object of the PSSRA as a whole and of
subsection 91(1) suggest a lower degree of deference to decisions by the
Minister on grievance resolutions.
4. Nature
of the question
[31] Finally,
in this case there are two different types of issue. First, the Minister held
that the applicants’ grievances were not admissible under the PSSRA. This
decision turns on a point of law and consequently no judicial restraint should
be shown.
[32] The
subject-matter of the second question is a mixed question of fact and law,
namely whether the doctrine of promissory estoppel is applicable in the circumstances
of the case at bar. However, the “fact” component is more important than the
“law” component, since the Minister’s decision was based on assessment of the
evidence in the record. This requires great deference from the Court.
[33] Having
considered these factors, I hold that the standard applicable to the first
issue is that of correctness. On the issue of whether the Minister observed the
commitment to give the applicants recall priority, I am of the view that the
standard of review is that of reasonableness simpliciter.
7. Analysis
A. Were grievances admissible under section 91
of Public Service Staff Relations Act?
[34] In her decision, the Assistant Deputy Minister Ms. Gobeil
held that the applicants’ grievances were not admissible under subsection 91(1)
of the PSSRA since they did not have to do with [translation] “interpretation of a clause in the collective
agreement or working conditions”. The respondent argued that the grievances
were inadmissible because they related to a question for which an
administrative procedure for redress was provided by another Act of Parliament.
In the respondent’s submission, this other administrative remedy was to be
found in the Public Service Employment Act, R.S.C. 1985, c. P-33 (PSEA).
[35] Reference
must be made to Canada (Attorney General) v. Boutilier, [2000]
3 F.C. 27, a judgment of the Federal Court of Appeal. In that case,
Mr. Justice Allen Linden reiterated that, in the light of the wording of
subsection 91(1), Parliament’s intention was to remove from the ordinary
grievance resolution procedure under the PSSRA some specialized areas that it
felt should be dealt with by the administrative process created by legislation
on those matters. At paragraph 3, Mr. Justice Linden wrote:
As early as in
1974 in In re Cooper, Mr. Justice Pratte stated:
Under section 90
a grievance may not be presented if it relates to a matter in respect of which
an “administrative procedure for redress is provided in or under an Act of
Parliament”. Where a procedure is so provided under which an employee’s
grievance may be redressed, the aggrieved employee cannot resort to the
grievance procedure under sections 90 and 91 of the Public Service Staff
Relations Act but must submit his complaint to the authority which has,
under the appropriate statute, the power to deal with it. An employee who is
dissatisfied with the decision of that authority may not file a grievance under
sections 90 or 91 in respect of that decision.
Therefore, in this
case, if there was an adequate alternative remedy under other legislation for
resolving the dispute between the applicants and the Department, the Minister
did not have the authority to hear it under subsection 91(1) of the PSSRA.
[36] In order
to determine whether the applicants may file their grievances under
subsection 91(1) of the PSSRA, the nature of the grievances must be
considered. The respondent submitted that the applicants were essentially
seeking recall priority if a position became available. As the question was one
of staffing, the respondent argued that the proper remedy for such grievances
was to be found in section 21 of the PSEA. The respondent contended that the
PSEA is a self‑contained system of administrative procedures of redress
with respect to Public Service appointments. In that case, the respondent
submitted, it is the Public Service Commission (the Commission) that had
jurisdiction to hear the applicants’ grievances under section 21 of the PSEA,
not the Minister under the PSSRA.
[37] Section
21 reads as follows:
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21. (1)
Where a person is appointed or is about to be appointed under this Act and
the selection of the person for appointment was made by closed competition,
every unsuccessful candidate may, within the period provided for by the
regulations of the Commission, appeal against the appointment to a board
established by the Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their representatives, shall be
given an opportunity to be heard.
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21. (1) Dans le cas d’une nomination, effective ou imminente,
consécutive à un concours interne, tout candidat non reçu peut, dans le délai
fixé par règlement de la Commission, en appeler de la nomination devant un
comité chargé par elle de faire une enquête, au cours de laquelle l’appelant
et l’administrateur général en cause, ou leurs représentants, ont l’occasion
de se faire entendre.
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(1.1) Where a
person is appointed or about to be appointed under this Act and the selection
of the person for appointment was made from within the Public Service by a
process of personnel selection, other than by competition, any person who, at
the time of the selection meets the criteria established pursuant to
subsection 13(1) for the process may, within the period provided for by
the regulations of the Commission, appeal against the appointment to a board
established by the Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their representatives, shall be
given an opportunity to be heard.
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(1.1) Dans le
cas d’une nomination, effective ou imminente, consécutive à un concours
interne effectuée autrement que par concours, toute personne qui satisfait
aux critères fixés en vertu du paragraphe 13(1) peut, dans le délai fixé
par règlement de la Commission, en appeler de la nomination devant un comité
chargé par elle de faire une enquête, au cours de laquelle l’appelant et
l’administrateur général en cause, ou leurs représentants, ont l’occasion de
se faire entendre.
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[38] The
applicants argued at the hearing that it was patently unfair for the Minister
to advise them nearly three years later that their grievances were not
admissible under the PSSRA. In any event, the applicants contended that their
grievances pertained to the Minister’s jurisdiction under the PSSRA. Contrary
to the respondent’s arguments, the applicants described their grievances as
questions involving the terms and conditions of their employment, not the
appointment.
[39] It would
have been better if the question of admissibility had been raised before the
case reached the final level of the internal grievance resolution procedure.
Despite that, an employee cannot make use of the grievance procedure
established under subsection 91(1) when other administrative procedures of
redress exist. Nevertheless, in this case I consider that the Minister has the
jurisdiction to hear the applicants’ grievances under subsection 91(1) of the
PSSRA. My reasons are as follows.
[40] In my
opinion, the nature of the applicants’ grievances did not relate to the appointment.
Rather, their grievances challenged the actions taken by the Department to fill
positions when the applicants were without work. The applicants asked that the
Department observe the terms and conditions of their offer of employment
letter, which the applicants allege contained a commitment to offer positions
during the off seasons to them first. The question on which the applicant’s
grievances turns is whether the Department did make such a commitment.
[41] In this
case, I am of the view that the appeal procedure provided by section 21 of
the PSEA is not an administrative remedy preventing the applicants from filing
their grievances under subsection 91(1) of the PSSRA. In my view,
section 21 does not in any way deal with the determination of a question
having to do with terms and conditions of employment. Subsection 21(1)
deals with the procedure by which an unsuccessful candidate may appeal from an
appointment following a competition. Subsection 21(2) deals with the procedure
by which any person who meets the criteria established pursuant to a process of
personnel selection other than a competition appeals from an appointment. It
follows that, since the applicants’ grievances were based on a failure to
observe a commitment made in the “Guidelines” document and the statements by
Ms. Harvey, those grievances could not be dealt with by the Commission. As
a result, no administrative procedure for redress exists under the PSEA.
[42] Therefore,
I am of the opinion that the Minister must consider the applicants’ grievances
under subsection 91(1) of the PSSRA. I will accordingly review the
Minister’s decision on the merits.
B.
Was the Minister required to give the
applicants recall priority?
[43] The
applicants submitted that the Minister made a reviewable error in finding that
the Minister did not undertake to give the applicants recall priority. As a
result of the alleged commitment, the applicants submitted that the rule of
promissory estoppel applied and that the Minister was barred from hiring other
individuals before having offered the positions to the applicants.
[44] The
respondent submitted that the applicants had not discharged their burden of
proof regarding the doctrine of promissory estoppel. The respondent contended
that there had been no promise and that the “Guidelines” document had never
altered the applicants’ terms and conditions of employment. Moreover, the
respondent said that the Department could not make a promise with respect to
hiring as that would contravene the merit principle.
[45] The
doctrine of promissory estoppel was set out in Maracle v. Travellers
Indemnity Co. of Canada, [1991] 2 S.C.R. 50. At page 57, Sopinka J. said
the following:
The principles of promissory estoppel are well settled. The party
relying on the doctrine must establish that the other party has, by words or
conduct, made a promise or assurance which was intended to affect their legal
relationship and to be acted on. Furthermore, the representee must
establish that, in reliance on the representation, he acted on it or in some
way changed his position. In John Burrows Ltd. v. Subsurface Surveys Ltd., [1968] S.C.R. 607, Ritchie J. stated, at p.
615:
It seems clear to me that this type of equitable
defence cannot be invoked unless there is some evidence that one of the parties
entered into a course of negotiation which had the effect of leading the other
to suppose that the strict rights under the contract would not be enforced, and
I think that this implies that there must be evidence from which it can be inferred
that the first party intended that the legal relations created by the contract
would be altered as a result of the negotiations.
This
passage was cited with approval by McIntyre J. in Engineered
Homes Ltd. v. Mason, [1983] 1
S.C.R. 641, at p. 647. McIntyre J. stated that the promise must be
unambiguous but could be inferred from circumstances.
[46] In
short, according to the case law, such a promissory estoppel cannot exist
unless there is an express or implied promise the effects of which are clear
and precise. It is also well settled that the doctrine of promissory estoppel
requires that the promise led the person to whom promise was addressed to act
in some other way than he or she would have acted in other circumstances: see The
Queen v. Canadian Air Traffic Control Association, [1984] 1 F.C. 1081
(F.C.A.), at page 1085.
[47] In order
to meet the requirements of the doctrine of promissory estoppel, the applicants
must offer evidence showing that:
(1) by its words or actions the Department made a promise to
give the applicants priority designed to alter their legal relations and
encourage the performance of certain acts;
(2)
on account of that commitment, the applicants
took some action or in some way changed their positions.
[48] For the
reasons that follow, I am of the view that the evidence does not support a
finding of a promissory estoppel in this case.
[49] The
applicants argued that their employer was bound by the statements made by
Ms. Harvey, the “Guidelines” document and the Commission’s code of values
and so had to offer work that was available to the applicants. As proof of that
commitment, each applicant filed an affidavit.
[50] On the
representations of their employer, Ms. Germain maintained that
Ms. Harvey had given an assurance that the Department undertook to give
her priority of employment in slow periods. Mr. Dubé, for his part, contended
that [translation] “when I was
hired, I was clearly told and given assurances that the employer would give me
priority during slow periods”. The applicants also stated that they had been
told when they accepted the seasonal positions that they would be given
priority if a position became available.
[51] On the
“Guidelines” document, the applicants simply argued that they had received a
copy of the document and it had been confirmed that the document was part of
their terms and conditions of employment. Finally, the applicants referred in
their respective affidavits to a letter written by Jocelyne Tanguay, director
of the Department’s regional office in Saguenay‑Lac St. Jean,
in February 2004. The applicants stated that, in her letter, that was attached
to their affidavits, Ms. Tanguay confirmed that the Department had agreed to
give seasonal employees priority when replacements were made during their slow
periods.
[52] Having
read the applicants’ statements, I am of the view that the evidence does not
support the existence of an unambiguous promise, the effects of which are clear
and precise. Firstly, I note that in their respective affidavits the applicants
are vague about the details of the alleged commitment. For example, Mr. Dubé
did not name the manager who gave him the assurance of priority. Also, the
applicants did not name the departmental representative who is said to have
confirmed for them the purpose or effect of the “Guidelines” document. In
addition, the applicants did not mention the dates on which the Department
allegedly made these statements and gave these assurances.
[53] Moreover,
in her affidavit Ms. Harvey denied having made an oral promise to the
applicants that they would have employment priority during their off seasons.
Ms. Harvey claimed that the only document officially given to Mr. Dubé and
Ms. Germain was their employment offer letter and that such offer letters set
out the sole commitment made to the applicants, namely the periods during which
their services would be required from year to year.
[54] As
earlier mentioned, the applicants did not give the Court copies of their
employment “contract”. Based on the evidence before the Court, I cannot find
that the “Guidelines” document or Ms. Tanguay’s letter altered the terms
and conditions of the applicants’ employment contained in the offer letter. In
my opinion, the wording of the “Guidelines” document and of Ms. Tanguay’s
letter suggests a line of conduct adopted by local management to fill its
operating requirements: they do not represent an unambiguous commitment to give
recall priority to seasonal employees in general or to the applicants in
particular. Indeed, I note that neither the “Guidelines” document nor Ms.
Tanguay’s letter were addressed to the applicants.
[55] Evidence
of a commitment is critical in establishing the validity of an allegation based
on the principle of promissory estoppel. In short, I consider that the
conclusions drawn by the applicants from certain passages in the “Guidelines”
document and Ms. Tanguay’s letter to the effect that such a commitment existed
are not sufficient evidence to support an application of the doctrine of
promissory estoppel.
[56] The
above finding is sufficient to dispose of this case. That being said, even if
the applicants had been able to persuade the Court of the existence of such a
promise, I am of the view that they failed to show that they took any action or
in any way altered their positions on account of that promise. Accordingly, the
second requirement of the doctrine of promissory estoppel has not been met in
this case.
[57] In their
memorandum of fact and law, the applicants argued that they acted on the basis
of the Department’s commitment when they signed their respective contracts of
employment and failed to apply for positions in a competition. However, nothing
in their own affidavits indicates that the reason the applicants accepted the
seasonal positions was the alleged promise or that the applicants relied on
that promise when choosing not to participate in the staffing competitions.
[58] In view
of the gaps in the evidence in the record, the applicants did not establish the
existence of the alleged commitment. Accordingly, the doctrine of promissory
estoppel cannot be applied. I am of the view that the impugned decision by the
Minister contains no error which could support a conclusion of
unreasonableness. The decision is clearly based on the facts in the record and
there is no basis for altering it.
[59] Two
other points made by the applicants deserve to be addressed. Firstly, the
applicants alleged that the Department changed its staffing policies and did
not inform the applicants of the consequences of failing to apply for
competitions. The applicants submitted that this was a breach of the code of
values and ethics and that they suffered damage therefrom. The code of equity
and values requires that candidates be informed of their rights before staffing
is undertaken. I do not accept the applicants’ argument that the Department
breached the code of equity and values. In fact, the evidence on the record was
that Ms. Harvey informed the applicants in 2002, before the end of the
period of employment stipulated in their letter of employment, that they would
have to apply for customer service officer competitions if they wished to be
hired when the off seasons arrived. Ms. Germain did not apply and Mr. Dubé
failed in the course of the process and so did not appear on an eligibility
list. Further, the applicants themselves admitted that they were told of the
need to apply for competitions. Moreover, in their 2002 grievances the
applicants objected to the requirement that they had to participate in level PM‑01
selection processes.
[60] Secondly,
as to Ms. Gobeil’s finding that the Department could not assume that the
applicants met the requirements of the position, the applicants argued that
there was no basis for finding that they were not qualified. In my view,
Ms. Gobeil did not find that the applicants lacked the necessary
qualifications: rather, she found that the applicants had not qualified on an
eligibility list as they had not participated in the selection competitions.
8. Conclusion
[61] For the foregoing reasons, the application for judicial
review is dismissed with costs. Based on the evidence on the record, I cannot
conclude that the Minister made any reviewable error.
ORDER
THE COURT ORDERS:
1. the
application for judicial review be dismissed;
2. The
whole with costs.
“Edmond P. Blanchard”
François Brunet,
LLB, BCL
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