Date:
20050930
Docket:
T‑1844-04
Citation:
2005 FC 1341
BETWEEN:
PIERRE
GIRARD
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER
[1]
In May
2004, Pierre Girard, an employee of the Canada Customs and Revenue Agency
(CCRA), received an internal e-mail announcing a position to be filled. The
“Notice of Interest” stated the following:
[translation]
An AU-2 level position is vacant in the
real property appraisal division . . . In addition, as the expertise of a
property appraiser requires a significant amount of training time, the
successful candidate will have to be willing to devote several years of his or
her career to it.
[2]
Mr. Girard
and some of his fellow employees responded to the “Notice of Interest”. His
application was accepted with that of three other employees.
[3]
Accordingly,
Mr. Girard took part in a competition process which included the submission of
a portfolio and a written test. However, he did not obtain the desired
position, which was offered to one of his fellow employees, and decided to seek
the recourses made available by the staffing program. However, he was not
allowed to seek an independent third party review (ITPR) on account of the fact
that the position to be filled had been designated as a temporary lateral
transfer, not a permanent position. It is this decision by the adviser not to
allow him to seek an ITPR that Mr. Girard is now challenging with his
application for judicial review in this Court.
Facts
[4]
The
CCRA was created by subsection 4(1) of the Canada Customs and Revenue Agency
Act. Section
54 of the Act provided that the Agency could create its own staffing program.
That program determined not only how employee appointments would be made, but
also the recourses available to them.
[5]
The
directive on Recourse for Staffing provides that an employee who is not
satisfied with a decision made in a staffing process or who does not
successfully go through the staffing process may exercise one of three
available recourses, depending on the nature of the employment, namely
individual feedback, internal review of the decision or the ITPR.
[6]
When Mr.
Girard learned that he had not been given the position, he applied for an
individual feedback. After the feedback session, the CCRA allows employees not
satisfied with the latter to initiate an ITPR application. This remedy provides
that an employee wishing to have an ITPR must make an application in writing to
the CCRA Office of Dispute Management and the manager who made the decision on
the position. The Office of Dispute Management must then check the application
to see that it meets all the prior requirements for an ITPR. One of those
conditions is that the position be permanent. If the relevant requirements are
met, the application is forwarded for an independent third party review.
[7]
When Mr.
Girard sought an ITR, the adviser refused to refer his complaint for the ITR
under the CCRA Directives providing that that remedy is only available for
permanent positions. Accordingly, the adviser argued that she did not have
jurisdiction to refer the complaint for an ITR, since the position was
temporary and not permanent.
[8]
It should
be noted that Mr. Girard had no opportunity to make formal submissions, either
in person or in writing, in an effort to explain why, in his opinion, the
position for which he had applied was an internal selection process for a
permanent position.
[10]
When Mr.
Girard received the “Notice of Interest”, he interpreted it as relating to a
permanent position, while the CCRA manager maintained that the notice by implication
advertised a temporal lateral transfer. The Court does not have to make a
decision on the merits of the competition or the manager’s decision to award
the position to an employer other than Mr. Girard. The Court is not called
to determine whether the position is permanent or temporary either. Quite
simply, Mr. Girard is entitled to challenge the manager’s decision and to
allege that the adviser made a decision and that Mr. Girard was thereby
deprived of a fair process.
Issues
[11]
There are
thus two issues submitted to this Court: first, did Mr. Girard benefit from a
fair proceeding? – second, what standard of review is applicable in the case at
bar?
Analysis
[12]
In
the case at bar, the Court must examine the process that the adviser followed
in arriving at her decision. If I find that it was not fair, I do not have to
rule on the applicable standard of review.
[13]
The
fact that the CCRA controls its own staffing program does not mean that it can
apply whatever directives it likes. In Canadian Union of Public Employees
(C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at
paragraph 127, Binnie J. cited the remarks of Le Dain J. in Cardinal v.
Director Kent Institution, [1985] 2 S.C.R. 643, at p.653:
14. . . .
This Court has affirmed that there is, as a general common law principle, a
duty of procedural fairness lying on every public authority making an
administrative decision which is not of a legislative nature and which affects
the rights, privileges or interests of an individual . . .
[14]
First,
the adviser never initiated any proceeding, in writing or by a hearing, to
determine the nature of the position in issue. As seen in Cardinal, supra,
at paragraph 20:
. . .
Certainly a failure to afford a fair hearing, which is the very essence of the
duty to act fairly, can never of itself be regarded as not of “sufficient
substance” unless it be because of its perceived effect on the result or, in
other words, the actual prejudice caused by it. If this be a correct view of
the implications of the approach of the majority of the British Columbia Court
of Appeal to the issue of procedural fairness in this case, I find it necessary
to affirm that the denial of a right to a fair hearing must always render a
decision invalid, whether or not it may appear to a reviewing court that the
hearing would likely have resulted in a different decision. The right to a fair
hearing must be regarded as an independent, unqualified right which finds its
essential justification in the sense of procedural justice which any person
affected by an administrative decision is entitled to have. It is not for a
court to deny that right and sense of justice on the basis of speculation as to
what the result might have been had there been a hearing.
[15]
The
fact that the Act allows the Program to give effect to these Directives creates
a legitimate expectation that there will be procedural fairness. The CCRA is
nevertheless subject to the rules of natural justice and must ensure that the
remedial process available to employees pursuant to the Directives will be
observed.
[16]
If the
adviser had doubts or concerns about whether the position was a permanent or
temporary one, she never told Mr. Girard about them so that he could respond.
This necessarily entails a breach of natural justice, since she should have
expressed her concerns and then given him a chance to address them. The parties
acted on the assumption that, if the adviser did have concerns, she was
supposed not only to mention them but to give Mr. Girard a chance to respond.
The CCRA suggested that the adviser advised Mr. Girard orally on August 10,
2004 that this was not a permanent position and that he was therefore not
entitled to an ITPR. However, Mr. Girard had no opportunity to respond to that
statement. Accordingly, the question whether the dispute could be heard by an
independent third party was never discussed. In Maurice v. Canada
(Treasury Board) 2004 FC 941, [2004] F.C.J. No. 1165 (QL), Gauthier
J. stated at paragraph 32:
. . . it has already been shown that the Committee must give
an employee or his or her representative an opportunity to make submissions on
additional or contradictory information obtained from the employer or on new
facts that may influence the Committee’s decision.
[17]
Mr.
Girard could not automatically seek the ITPR remedy. For Mr. Girard’s
application to be referred to an independent third party, the adviser had to
decide that his application was admissible. Although the proceeding before the
adviser was not of an adversary nature, the adviser’s decision significantly
affected Mr. Girard’s rights. As Décary J.A. noted in Chong v. Canada
(Treasury Board) (1999), 170 D.L.R. (4th) 641, [1999]
F.C.J. No. 176 (QL), at paragraph 12:
In our view, nothing turns on whether the
process is defined as being adversarial or non-adversarial. There is clearly a
dispute between parties which the grievance process seeks to resolve and the
duty of fairness clearly applies to that process. The content of the duty of
fairness will be more or less comprehensive depending upon the nature of the
interests affected by the decision and the nature of the process involved.
[18]
Secondly,
Mr. Girard believed that the position was a permanent position entitling him to
an ITR. This fundamental belief gave rise to a reasonable expectation that
should have been addressed fairly by the adviser. If, based on the information
at her disposal, the adviser was unable to make a decision, she at the very
least had a duty to allow Mr. Girard to defend his case regarding the nature of
the position and then assess the situation. See Wire Rope Industries of
Canada (1966) Ltd. v. British Columbia Marine Shipbuilders Ltd., [1981] 1
S.C.R. 363, where McIntyre J. said, at paragraph 16:
. . . during
argument the Court raised the question of jurisdiction of the Federal Court
Trial Division to entertain Yorke’s action for indemnity against Wire Rope.
This point had not been raised before. Counsel were referred to the judgment of
this Court in R. v. Thomas Fuller Construction Co. (1958) Limited and
Foundation Company of Canada Limited, [1980] 1 S.C.R. 695. The hearing
was adjourned to give time for counsel to consider the position in the light of
the Fuller case and to submit new factums on the question of
jurisdiction so that it could be argued in full.
[19]
In
the view of this Court, it is clear that procedural fairness is in issue. Then,
as explained before, no analysis of the applicable standard of review is
necessary. However, in the case at bar even if the issue of procedural fairness
is put aside, the adviser’s decision is patently unreasonable.
[20]
To
begin with, this Court is unable to analyse the adviser’s reasoning, since she
gave no explanation of her decision. As was stated in R. v. Sheppard, [2002]
1 S.C.R. 869 (QL) , at paragraph 15:
. . . The courts frequently say that justice must not only
be done but must be seen to be done, but critics respond that it is difficult
to see how justice can be seen to be done if judges fail to articulate
the reasons for their actions. Trial courts, where the essential findings of
fact and drawing of inferences are done, can only be held properly to account
if the reasons for their adjudication are transparent and accessible to the
public and to the appellate courts.
It
is thus impossible for Mr. Girard or this Court to see how she concluded that
the position was temporary. It is true that offering reasons in writing is not
a requirement: however, in this context, how can the Court be expected to
decide that the adviser made the right decision, or even a reasonable one?
[21]
The
failure to give an explanation in support of her reasoning is risky for the
adviser as, even if her decision may not appear reasonable a priori,
there is a guideline which the Court can follow to determine how she reached
her decision. As noted in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 (QL) at paragraph 39:
Reasons,
it has been argued, foster better decision making by ensuring that issues and
reasoning are well articulated and, therefore, more carefully thought out. The
process of writing reasons for decision by itself may be a guarantee of a
better decision. Reasons also allow parties to see that the applicable issues
have been carefully considered, and are invaluable if a decision is to be
appealed, questioned, or considered on judicial review: R. A. Macdonald and D.
Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P.
123, at p. 146; Williams v. Canada (Minister of Citizenship and
Immigration), [1997] 2 F.C. 646 (C.A.), at para. 38. Those
affected may be more likely to feel they were treated fairly and appropriately
if reasons are given: de Smith, Woolf, & Jowell, Judicial Review of
Administrative Action (5th ed. 1995), at pp. 459-60. I agree
that these are significant benefits of written reasons.
In
the case at bar, there is no guideline to follow. To determine whether the
decision was reasonable, therefore, the Court must rely on the evidence
presented by the parties. If the evidence points to a result different from
that arrived at by the adviser, it will then be difficult for the Court to
support the latter’s reasoning.
[22]
It
is also important not to overlook the fact that she exercised no independent
judgment in coming to the conclusion that the position was temporary and not
permanent. The manager claimed that, despite what Mr. Girard believed, this
changed nothing about the temporary nature of the position and the fact that,
under the Directives, a temporary lateral move is not subject to an ITR. The
adviser’s function is to determine what can be redressed by way of an ITR, and
one of the determining factors is whether the position can be classified as
temporary or permanent. To do this, the adviser did no independent research,
examined no evidence and consulted no individuals affected by the matter. She
relied solely on the claim made by the manager that the position was temporary,
and moreover did not tell Mr. Girard of this. By refusing to exercise
independent judgment so as to make this distinction, she failed to carry out
her duties, which ultimately is a question of ability.
[23]
This
Court has already said that its role is not to decide whether a position is
temporary or permanent or to determine the criteria of the competition.
However, without some explanation of the adviser’s reasoning, the Court must
rely on the evidence presented by the parties in determining whether the
decision was patently unreasonable. The Court has great difficulty with the
respondent’s contention that the position was temporary. One cannot rely simply
on the statement that the position is temporary and classify it as such. The
actual nature of the position has to be determined. On account of the fact that
the candidate must devote several years of his career, namely five years, and
that the position had existed long before the posting of the “Notice of
Interest”, the Court is of the view that the position was permanent.
[24]
Further,
an analysis of the wording of the staffing program Directives reveals an
ambiguity between the French and English versions, which may be resolved in Mr.
Girard’s favour. Where the English version of the directives states that one of
the conditions of the availability of an ITR is that the position be a
“permanent appointment”, the French version refers to a “promotion à un poste
permanent”. This Court is not inclined to enter into a semantic debate but it
will simply note the fact that, in such contexts, if there is ambiguity in the
Directives, the employer should not be in a position to base its argument on
one version of the wording so as to adversely affect the rights conferred by
the Directives. When this case came before this Court, it became clear there
was an ambiguity between the French and English versions. This then is
additional factor which should be considered in the redetermination.
[25]
Based on
the facts presented by the parties, and without having had the advantage of
understanding the adviser’s reasoning, this Court is of the view that the
latter’s decision was patently unreasonable.
[26]
There is
an additional issue: is the affidavit of Julie Skinner admissible in this
Court? Under Rule 81(1) of the Federal Court Rules, the affidavit is not
admissible since Ms. Skinner had no personal knowledge of the facts set
out in it. Further, as the salary of the employee who obtained the desired position
has no bearing in the case at bar, the affidavit will not be admitted. However,
the Court should like to point out that, once again, this kind of evidence
could have been heard as part of the arguments pertaining to the nature of the
position.
[27]
Mr.
Girard also incorporated in his file sociological studies in support of his
argument that the position was permanent, and not temporary. Although those
studies have some value with respect to Mr. Girard’s argument, they are
inadmissible in this Court precisely because they were never submitted to the
adviser and they are an attachment to the affidavit of Christopher Rootham, the
applicant’s assistant counsel. They are thus hearsay and in violation of Rule
81(1) of the Federal Court Rules. However, this documentation is a good
example of what could have been submitted to the adviser so as to determine
whether the position was permanent or temporary: see Jacques Rice v.
Attorney General of Canada, [2005] F.C.J. No. 1439, at paragraph 24.
[28]
For
information, there are certain other submissions made by the applicant and
respondent and that this Court deems worthy. Mr. Girard cited a great number of
cases, such as Doré v. Canada, [1987] 2 S.C.R. 503, and Canada
(Attorney General) v. Brault, [1987] 2 S.C.R. 489, to illustrate the
distinction between temporary and permanent positions and between appointments
and assignments. The respondent raised the fact that this case law is
irrelevant as all the cases relate to section 21 of the Public Service
Employment Act. As mentioned above, this Court does not have to rule on
that point. However, analogies may be drawn from those cases as to how a
temporary or permanent position should be defined, and in particular as to how
courts tend to assess the duration of a position and the duties thereof.
[29]
Moreover,
it would be strange to think that an employee, such as a temporary summer
employee, working for the CCRA, cannot follow the process required by the
Department but can directly initiate an application for judicial review in the
Federal Court. In other words, the respondent’s evidence appears to indicate
that a permanent employee must use the remedies required by the CCRA Directives
and cannot then have a right of appeal to the Federal Court, whereas a
temporary employee has a direct right of appeal to the Federal Court. There is
no logic in that theory.
[30]
Finally,
the fact remains that Mr. Girard should have had an opportunity to make
submissions about the nature of the position. Despite the fact that the review
in question is made by an independent third party who interprets directives
specific to a department such as the CCRA, it is still necessary to ensure
procedural fairness to the individuals concerned. It is clear Mr. Girard was
deprived of procedural fairness.
[31]
Accordingly,
for all the aforementioned reasons, the application for judicial review is
allowed with costs. The adviser’s decision is set aside and the matter referred
back to another adviser for redetermination.
“Sean
Harrington”
Judge
Ottawa, Ontario
September 30,
2005
Certified true
translation
François Brunet, LLB,
BCL
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