Date: 20061107
Docket: T-2037-05
Citation: 2006 FC 1340
Vancouver, British Columbia, November
7, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
JOHN GLOFCHESKIE, VORSHAL
HANDA
and DON
HORNING
Applicants
and
ATTORNEY
GENERAL OF CANADDA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
John
Glofcheskie seeks judicial review of the decision of an Independent Third Party
Reviewer which found that the Canada Customs and Revenue Agency had not acted
arbitrarily in taking “budget considerations related to geographic location”
into account in staffing certain senior auditor positions in the Agency’s
Toronto West Tax Service Office.
Background
[2]
Mr.
Glofcheskie is employed as a tax auditor at the AU-3 level in the Agency’s
Toronto East Tax Service Office.
[3]
On
December 1, 2000, a Notice of Employment Opportunity was posted for Team Leader
positions at the AU-4 level in the Agency’s Toronto West Tax Service Office.
The Notice advised that the staffing process was open to Agency employees
occupying positions in the Agency’s Southern Ontario Region.
[4]
This
process was intended to identify a pool of qualified candidates which could be
drawn on in order to fill specific AU-4 positions, as the need arose.
[5]
Insofar
as placement criteria were concerned, the Notice indicated that individual
placement decisions would be based upon one or more of a number of identified
criteria, one of which was “budget considerations related to geographic
location” (“BCRGL”).
[5]
[6]
Other
potential placement criteria included candidates’ ability to communicate orally
and to make presentations, candidates’ knowledge of Agency initiatives,
interpersonal skills, judgment and client service orientation, and candidates’
abilities as team players.
[7]
Mr.
Glofcheskie participated in the staffing process, and was found to meet the
basic pre-requisites for participation in the process, including the geographic
requirement that he be working in the Agency’s Southern Ontario Region.
[8]
Mr.
Glofcheskie was then invited to participate in the assessment phase of the
process. After succeeding in the assessment phase, he became part of the pool
of successful candidates awaiting placement in AU-4 positions at the Agency’s
Toronto West Tax Service Office.
[9]
In
2001, a number of candidates in the pool were selected for placement in
positions at the Toronto West Tax Service Office. Mr. Glofcheskie was not one
of them. Although the Toronto West Tax Service Office was evidently operating
at a deficit at this time, budget considerations related to geographic location
were not considered in relation to these placements, and not all of the
successful candidates had been employed by the Toronto West Tax Service Office
prior to being awarded an AU-4 position.
[10]
Later
in 2001, another group of candidates from the pool were selected for acting
placements. This time, the BCRGL criterion was applied, and only candidates
already working in the Toronto West Tax Service Office were placed in AU-4
positions. In May of 2003, these placements were made permanent.
[11]
In
the meantime, in April of 2003, Mr. Glofcheskie sought clarification with
respect to the BCRGL criterion, and was advised that the Toronto West Tax
Service Office could not add staff from outside the Office until its deficit
had been eliminated. As a consequence, the BCRGL criterion was being applied,
with the result that only candidates currently employed in the Toronto West Tax
Service Office would be considered for placement.
[12]
Mr.
Glofcheskie then sought “individual feedback” with respect to the process, in
accordance with the Agency’s staffing policies. At this time, he was advised
that he had not succeeded in obtaining an AU-4 position as a result of the
application of the BCRGL criterion.
[13]
Mr.
Glofcheskie then sought an Independent Third Party Review with respect to the
Agency’s use of the BCRGL criterion, asserting that the Area of Selection for
the AU-4 positions was Regional, that Agency budgets were allocated and
administered on a regional basis, and that appointing him to an AU-4 position
would not affect the Regional salary pool. Moreover, he would not have been
entitled to any relocation expenses, as he already lived in the area.
[14]
The
review did not proceed right away, as the parties were awaiting the outcome of
another case involving similar issues (the “Guinard” case). It was only
after the decision in Guinard was handed down, and after the Agency’s
application for judicial review of that decision was withdrawn, that Mr.
Glofcheskie’s review went ahead, culminating in an October, 2005 decision by the
Independent Third Party Reviewer.
The Independent Third
Party Reviewer’s Decision
[15]
The
review of Mr. Glofcheskie’s case was carried out by an Independent Third Party
Reviewer (“ITPR”), appointed in accordance with the Agency’s staffing
policies.
[16]
The
ITPR accepted Mr. Glofcheskie’s submission that she was required to determine
whether the Agency’s staffing decision to apply the BCRGL criterion was
arbitrary, and not simply whether the decision was made in good faith.
[17]
In
this regard, the ITPR found that the Toronto West Tax Service Office faced
significant budgetary constraints, that it was precluded from adding any salary
monies to its budget until its deficit was eliminated, and that it was these
budgetary concerns that led to the use of the BCRGL criterion. Moreover, the
ITPR found that the Agency had been transparent in its use of this criterion.
[18]
Furthermore,
the ITPR determined that the AU-4 appointments had been made on the basis of
other established job specific requirements, including ability to communicate
orally, effective interpersonal skills, judgment, and ability to function as a
team player.
[19]
The
ITPR also found that there had been no narrowing of the area of selection. In
this regard, the ITPR found that while policies of general application should
be followed, where a rationale for deviating from the policy is apparent, the
failure to follow the policy is not arbitrary.
[20]
The
ITPR rejected Mr. Glofcheskie’s submission that the BCRGL criterion had been
used arbitrarily as a screening tool. In the view of the ITPR, the Agency had
to be allowed to respond to changing circumstances by applying appropriate
criteria when the need to do so became apparent.
[21]
The
fact that a temporary regional reallocation of funds might have been possible
would not have solved the Toronto West Tax Service Office’s budgetary crisis,
given that these monies would eventually have had to be returned. While other
options may have been available to the Toronto West Tax Service Office to
address its budgetary deficit, the ITPR noted that her authority was limited to
determining whether the procedure chosen was arbitrary.
[22]
The
ITPR refused to examine other AU-4 placements made by the Agency in 2001, 2002
and 2005, as they were separate processes that were not before her. Moreover,
without the necessary background budgetary evidence, the ITPR found that
consideration of these placements would be of limited assistance.
[23]
Finally,
the ITPR refused to consider whether Mr. Glofcheskie had been discriminated
against on the basis of the office in which he worked, as this was not one of
the enumerated grounds set out in the definition of “arbitrary”.
The Agency's Staffing
Policy and Procedures
[24]
In
order to situate the issues raised by Mr. Glofcheskie’s application, it is
first necessary to have some understanding of the Agency’s staffing policy and
procedures, as they relate to the issues raised by this case.
[25]
The
Agency was established in 1999 and was originally known as the Canada Customs
and Revenue Agency. Subsection 53(1) of the Canada Customs and Revenue
Agency Act (CCRA), S.C. 1999, c. 17 (“CCRA”) vests in the Agency the
exclusive right and authority to appoint its employees. Subsection 54(1) of
the Act requires the Agency to "develop a program governing staffing,
including the appointment of, and recourse for, employees".
[26]
Staffing
in the Agency is carried out in accordance with a Staffing Program established
in accordance with section 54 of the CCRA. This program contemplates a
three-stage process, when staffing is done through a pre-qualified process such
as the one at issue in this case.
[27]
The
first of these stages is the Review of Pre-requisites, akin to a ‘screening-in’
process, involving the evaluation of candidates against a pre-determined list
of pre-requisites which have been identified in the Notice of Job Opportunity.
[28]
The
Agency’s Staffing Program includes a Directive on Area of Selection which
prescribes minimum areas of selection for certain senior-level positions. It
is common ground that for a Tax Auditor position at the AU-4 level, this
Directive mandates that positions be available to individuals employed in the
Agency Region in issue.
[29]
The
Directive does provide management with some flexibility in this regard,
specifying that “under exceptional circumstances”, “Authorized Persons may
restrict the prescribed areas of selection”.
[30]
There
is no suggestion in this case that “Authorized Persons” were involved in
limiting the prescribed area of selection to the Toronto West Tax Service
Office based upon the existence of “exceptional circumstances”.
[31]
Once
candidates have satisfied the pre-requisites, they then proceed to the
assessment stage, which involves the comparison of the candidates’ competencies
and qualifications against established assessment criteria. Those candidates
determined to be qualified then become part of the pool from which placements
can ultimately be made.
[32]
The
final stage in the process is the placement phase, which is the point at which
selection is made from among the qualified candidates in the pool “based upon
established job requirements linked to business needs”.
[33]
The
Placement Stage provisions contained in Annex E1 of the Agency’s Staffing
Program Guidelines provides that placement criteria can include, amongst others
things, the geographic location of the candidates. That is, in deciding who to
hire from the pool, Agency management may base their selection on a “local
preference linked to budgetary constraints”.
[34]
With
this understanding of the Agency’s staffing policies and procedures, I turn now
to consider the issues raised by Mr. Glofcheskie on this application.
Issues
[35]
Mr.
Glofcheskie says that the ITPR’s decision is flawed because:
1. The
ITPR failed to make the findings necessary to support the conclusion that the
Agency’s use of the BCRGL criterion complied with the Agency’s own policies on
Area of Selection and Transparency;
2. The
ITPR failed to consider Mr. Glofcheskie’s allegation that the BCRGL was applied
in a manner that arbitrarily distinguished amongst candidates;
3.
The ITPR made an erroneous finding of fact without regard for the
material before her when she concluded that the use of the BCRGL criterion was
necessitated by the Toronto West Office’s budgetary problems; and
4.
The ITPR erred in failing to follow her mandate by ignoring the ITPR’s
decision in the Guinard case – a case involving virtually identical
facts, where the ITPR reached the opposite conclusion to that reached by the
ITPR in this case.
Standard of Review
[36]
The
parties are in agreement that the decision of the ITPR as to whether the Agency
had acted arbitrarily in applying the BCRGL criterion is one that is reviewable
against the standard of reasonableness.
[37]
In
Canada (Customs and
Revenue Agency) v. Kapadia, [2005] F.C.J. No. 2086, 2005 FC 1568, Justice
Kelen undertook a pragmatic and functional analysis in relation to a decision
of an Independent Third Party Reviewer dealing with a question of arbitrary
treatment at the placement stage. Justice Kelen concluded that such a decision
should be reviewed against the standard of reasonableness.
[38]
I
am in agreement with this conclusion, and adopt Justice Kelen’s pragmatic and
functional analysis as my own.
Analysis
[39]
I
do not intend to address the first three issues raised by Mr. Glofcheskie, as I
am satisfied that in the particular circumstances of this case, the failure of
the ITPR to make any specific reference to the Guinard decision in her
reasons amounts to a reviewable error, with the result that the decision must
be set aside.
[40]
In
coming to this conclusion, I note that the Agency’s ITPR Guidelines provide
that each case is to be considered on its own merit, and that previous ITPR
decisions do not have any precedential value. That said, the ITPR Guidelines
also provide that ITPRs are required to “review relevant decisions that are
relevant to the case”.
[41]
This
only makes sense, as it would be difficult to maintain the equal and fair
treatment in the staffing process promised by the Agency if each ITPR was able
to simply take his or her own idiosyncratic approach to issues, without any
consideration of decisions of other ITPRs dealing with similar questions.
[42]
That
is not to say that an ITPR is bound by earlier relevant decisions, but rather,
that the ITPR must at least review those decisions prior to reaching his or her
own decision on the point.
[43]
The
first question, then, is whether the decision in Guinard was relevant to
Mr. Glofcheskie’s case.
[44]
Like
Mr. Glofcheskie’s case, Guinard also involved the application of a more
restrictive geographical criterion at the placement stage than was specified at
the Pre-requisite stage.
[45]
That
is, like Mr. Glofcheskie’s case, the pre-requisites for the position in
question in Guinard stipulated that the process was open to anyone
working in a specific Agency region, and like Mr. Glofcheskie’s case, a
narrower geographic limitation was applied at the placement stage, for
budgetary reasons.
[46]
It
is true that unlike the situation in Mr. Glofcheskie’s case, in Guinard,
the Notice of Employment Opportunity did not specify that the BCRGL criteria
could be used as a criterion at the placement stage.
[47]
However,
a close review of the Guinard decision discloses that the decision did
not turn on the Agency’s failure to include such a criterion in the Notice of Employment
Opportunity. Rather, the ITPR in Guinard was of the view that given the
mandatory minimum area of selection specified in the Directive on Area of
Selection, in the absence of “exceptional circumstances”, it was simply not
open to the Agency to reduce the area of selection to an area smaller than that
set out in the Notice of Employment Opportunity at the placement stage of the
process. As such, the decision was clearly relevant to the issues before the
ITPR in this case.
[48]
It
is also clear from the conduct of the parties in this case that Guinard
was clearly recognized by both sides as being highly relevant to Mr.
Glofcheskie’s case, notwithstanding the factual difference identified above.
[49]
That
is, although the Agency now tries to distinguish the facts in Guinard
from those in Mr. Glofcheski’s case, both the Agency and Mr. Glofcheskie
clearly understood and accepted that the ITPR’s decision in Guinard
would be highly relevant to Mr. Glofcheskie’s case, as is evidenced by their
agreement that Mr. Glofcheskie’s case be held in abeyance pending a final
decision in Guinard.
[50]
Moreover,
it is not now open to the Agency to argue the Guinard case ceased to be
relevant to Mr. Glofcheskie’s case, given the reasoning of the ITPR in that
case. Not only did the Agency never suggest that Guinard was no longer
relevant to Mr. Glofcheskie’s case in light of the ITPR’s reasoning, indeed the
ongoing relevance of the case was clearly recognized and acknowledged by the
parties, resulting in their agreement to continue holding Mr. Glofcheskie’s
case in abeyance, pending the final resolution of the Guinard case by
the Federal Court.
[51]
Indeed,
it was only when the Agency withdrew its application for judicial review of the
ITPR’s decision in Guinard that Mr. Glofcheskie’s case proceeded.
[52]
Having
thus determined that the Guinard decision was relevant to Mr.
Glofcheskie’s case, the next question is whether the failure of the ITPR to
make any reference to the Guinard decision in her reasons means that the
decision was not reviewed by the ITPR, as is directed by the Agency’s ITPR
Guidelines.
[53]
The
Agency points to the fact that a copy of the Guinard decision was in the
Certified Tribunal Record, and that, as a result, it must have been before the
ITPR when she made her decision. According to the Agency, it cannot be
inferred from the failure of the ITPR to specifically mention Guinard in
her decision that it was not considered by her in her deliberations.
[54]
It
is true that adjudicators are generally presumed to have considered all of the
evidence before them, and I accept that this general presumption should extend
to jurisprudence contained in a tribunal record.
[55]
While
such a presumption does exist, where the evidence in question is of central
importance to the issues at hand, the failure of an adjudicator to refer to
such may lead to the inference that the evidence has been ignored: see, for
example, Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at ¶ 14 – 17.
[56]
It
was open to the ITPR to try to distinguish the findings of the ITPR in Guinard,
or to simply disagree with them. However, based upon the particular facts of
this case, I find that the Guinard decision was of central importance to
the issues in Mr. Glofcheskie’s case, and to the parties themselves. In these
circumstances, the failure of the ITPR to even mention it in her decision was
unreasonable.
[57]
Moreover,
the failure of the ITPR to discuss the Guinard decision in her reasons
raises a real question as to whether the decision was indeed reviewed by her at
all. This in turn raises a concern as to whether she properly discharged the
mandate conferred on her by the ITPR Guidelines to review all relevant
decisions.
[58]
As
the ITPR’s decision cannot withstand a somewhat probing analysis, it must be
set aside.
[59]
My
conclusion in this matter does not mean that an ITPR will have to make at least
passing reference in his or her reasons to every decision of arguable relevance
to the situation before him or her, failing which the decision could be set
aside on judicial review.
[60]
However,
where, as here, there is a decision that is clearly relevant to the issues
raised by the case in question, a relevance which has clearly been recognized
and acknowledged by the parties, the failure of the ITPR to even mention the
decision in her reasons was unreasonable, and amounts to a reviewable error.
Conclusion
[61]
For
these reasons, the application is allowed, with costs. The decision of the
ITPR is set aside, and the matter is remitted to another ITPR for
re-determination, with the direction that the new ITPR review and consider the
decision of ITPR Marszewski in Guinard in his or her deliberations.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES THAT this application is allowed, with costs. The decision of the
ITPR is set aside, and the matter is remitted to another ITPR for
re-determination, with the direction that the new ITPR review and consider the
decision of ITPR Marszewski in Guinard in his or her deliberations.
“Anne
Mactavish”
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