Laplante v. Canada (Food Inspection Agency), 2004 FC 1345

Date: 20040930

Docket: T-928-03

Citation: 2004 FC 1345

BETWEEN:

GEORGES LAPLANTE, JACQUES AUDETTE,

DANIELLE COUTURE and CAROL GAUVIN

                                                                                                                                           Applicants

and

CANADIAN FOOD INSPECTION AGENCY

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

LEMIEUX J.

[1]        The applicants, all regional officers, plant protection/production, employed by the Canadian Food Inspection Agency (the Agency) at the Quebec operations centre, are challenging the decision by Fiona Spencer, Vice-Chairperson, Human Resources of the Agency, dated May 1, 2003, approving the recommendation by the Agency's Classification Grievance Committee (the Committee), which after hearing and review considered their positions to be correctly classified at the AG-03 group and level, and so dismissed their claims that they should be reclassified at the higher level, AG-04, inspection manager.

[2]        Pursuant to subsection 96(3) of the Public Service Staff Relations Act (the Act), this decision was final and took effect on April 1, 1999, the date the positions held by the applicants were created.

[3]        The challenge made by the applicants is limited: it consists simply of determining whether the Committee made an error by not taking into account the alternative classification BI-04 suggested to increase the classification of the disputed positions, or if it dismissed this alternative classification, why it did so.

[4]        Before the Committee, the applicants were represented by Lyne Morin, classification agent with the Professional Institute of the Public Service of Canada: she filed in support of the applicants' application for judicial review an affidavit on which she was not cross-examined. No affidavit was submitted in reply by the Agency.

[5]        At her presentation to the Committee, Lyne Morin stated that she was challenging the classification (AG-03) on the ground that it did not take into account similarities existing between the positions held by the applicants and the generic national position (inspection manager) classified at the AG-04 level.

[6]        The extent of the comparison between the applicants' positions and the classifications suggested by Lyne Morin is set out in paragraphs 8, 9 and 10 of her affidavit, which read:

[TRANSLATION]

8.             In my presentation, citing Chong v. Canada, [1995] F.C.J. No. 1600, I mentioned that the Classification Grievance Committee should not confine itself to a comparison limited to the position of inspection manager, but should also look at the scope of the BI, PM or VM inspection manager positions, since all those positions were or could in fact be AG-04 positions.

9.             Specifically, I argued that if the Classification Grievance Committee considered that the scope of the disputed positions was not comparable with the AG-04 inspection manager positions, I was urging the Committee to decide on an alternative classification, namely BI-04.

10.           I pointed out in the course of my presentation that the work described in the position description at issue meets the requirements of the BI group, and so the scope of the positions was comparable to the BI-4 inspection manager position at the Quebec operations centre. [Emphasis added.]

[7]        In its decision the Committee recognized that the applicants had submitted evidence regarding the BI-04 inspection manager position, as follows:

[TRANSLATION]

Ms. Morin mentioned at the outset that her presentation would be based primarily on the principles laid down in Mick Chong et al., decided by the Federal Court in 1995, namely that a classification grievance committee must review the differences existing between the positions submitted in the grievances and comparator positions within the organization, in addition to appropriate classification standard benchmark positions, before making its recommendation to the deputy head's nominees.

Consequently, in accordance with the internal situation existing at the CFIA, she first emphasized a comparison with inspection manager positions (generic position No. 1003), but which might belong to a variety of occupational groups and levels, such as BI-4, VM-3, PM-6 or AG-4, according to the appendix used with the description as such, and the classifications of the incumbents at the time the positions were created on April 1, 1999. Although Ms. Morin acknowledged that some of the aforementioned positions, classified AG-4, included responsibility for managing several separate programs, with staff ranging from 74 to 100 employees, she nevertheless reviewed a number of other positions, classified BI-4 or VM-3, depending on the various operational centres, and in her submission including responsibilities that were more comparable to the four positions at issue, with a more comparable staff. Ms. Morin thus sought to clarify the various approaches used by CFIA management and human resources to the positions at issue and those of the inspection managers. She concluded that the positions at issue and the inspection manager positions entailed no significant differences and should be classified in the same way.

                                                                                                    . . . . .

In conclusion, the representative recommended that the positions at issue be classified at the AG-4 group and level. The proposed rating is the following: 4-4-4-4-4 = level AG-4, like that of inspection managers. If the Committee did not come to this conclusion, Ms. Morin recommended the BI-4 group and level, based on the current classification justification of the inspection managers, classified as such. [Emphasis added.]

[8]        In its decision, the Committee described how it arrived at its assessment:

[TRANSLATION]

The Committee took into account all the information and documents pertaining to the grievance and examined the activities and responsibilities of the position in the organizational structure existing when the grievances were filed. The Committee also took into account Mick Chong et al. in the Federal Court Trial Division (1995) and the Federal Court of Appeal (1999), in which Robert Décary J.A., for the Court, mentioned in his reasons without further clarification that the Classification Grievance Committee should examine the differences existing between the positions at issue and comparator positions existing in the same organization. On account of the nature of the classification grievance settlement procedure recommended by the Treasury Board, that procedure must meet a degree of fairness but it tends to a lower requirement rather than a more limiting one.

Consequently, this Committee has carefully considered the differences existing between the positions of regional officer, plant production or protection, and the positions of inspection manager, classified AG-4. The Committee has also noted the organizational context of the inspection manager, position, the span of supervision (70-100 persons) and the specialty areas covered. Further, regarding the list of programs, the Committee was in a position to note, comparing these various programs, the immense complexity and variety of families of plants, compared to other programs such as honey, eggs, cattle feed, seeds or fertilizer (the last three being combined in Mr. Gauvin's position), and came to the following unanimous conclusions . . .

[Emphasis added.]

[9]        Lyne Morin concluded her affidavit as follows:

[TRANSLATION]

16.           However, despite the fact that the Committee noted that it took all the relevant information and documents into account, the Committee's deliberations only offered an analysis dealing with consideration of the differences existing between the positions of regional officer, plant production or protection, and AG classification standard benchmark positions, without at the same time offering any explanations relating to application of the alternative BI-04 classification. Consequently, the Committee failed to deal with all the points at issue.

17.           In consequence, on reading the decision it is impossible to determine whether:

                (a)           the Committee considered my argument regarding the BI-04 alternative classification for validating the classification of the positions at issue; and

                (b)           if it dismissed the argument, why it did so.

Analysis

[10]      The parties were of the same opinion regarding the standard of review. In cases of a denial of procedural fairness in the classification grievance settlement procedure, the Federal Court of Appeal has already held that in view of the nature of the procedure the obligation tends to the lower zone of the spectrum (see Chong v. Canada (Attorney General), [1999] F.C.J. No. 176 (F.C.A.), and Bulat v. Canada (Treasury Board), [2000] F.C.J. No. 198 (F.C.A.)). Further, the Classification Grievance Committee's finding is essentially factual and should be treated with the greatest respect. Accordingly, the standard of the patently unreasonable decision is applicable.

[11]      The source and legitimacy of the classification grievance settlement procedure in the federal Public Service rests on two legislative provisions.

[12]      First, the Financial Administration Act gives the Treasury Board the power of administering the staff of the federal Public Service, and this includes that of providing for the classification of positions and employees within the Public Service (see paragraph 11(2)(c) of that Act).

[13]      Second, certain provisions of the Public Service Labour Relations Act apply. Section 7 of that Act gives the employer the right or authority in determining the organization of the Public Service to assign duties to and classify positions therein. Section 91 of that Act gives public servants the right to file grievances on matters affecting their conditions of employment, and section 92 allows a public servant who has filed a grievance to refer the latter to adjudication in certain cases, though these do not include classification grievances which cannot be referred to adjudication under subsection 96(3), which provides that a decision at the final level of the applicable procedure is final and binding, and no further action may be taken in respect of the grievance so disposed of.

[14]      As mentioned by McKeown J. in Chong v. Canada (Attorney General), [1995] F.C.J. No. 1600, since the procedure to be followed in classification grievances has not been set out either in the Financial Administration Act or in the Public Service Labour Relations Act, the Treasury Board has drawn up several policies contained in the Treasury Board Manual, including the Classification Grievances Policy, the Classification Grievance Procedure and the Classification System and Delegation of Authority Policy.

[15]      The purpose of the Treasury Board policy on the classification system is to ensure that the classification system determines the relative value of all work performed in the Public Service in an equitable, uniform, efficient and effective manner, and provides the bases for the payment of public service employees. Another purpose of that policy is to authorize managers to classify positions in their respective Departments in accordance with the policy, the applicable classification standard and the guidelines prepared and issued by the Treasury Board Secretariat.

[16]      In its document titled "Classification Grievance Procedure", certain provisions are to be found dealing with the Classification Grievance Committee, whose mandate is described as follows:

The Classification Grievance Committee is responsible for establishing the appropriate classification and evaluating the grieved position based on the duties assigned by management and performed by the employee and the additional information provided by management and the grievor and/or his or her representative. It must review and analyze all information presented in a gender neutral way. The classification recommended to the deputy head or nominee must be fair, equitable and consistent with the classification principles.

[17]      This policy lists the documents which members of the Classification Grievance Committee must have in order to evaluate a position. One of these required documents is the existing organization chart, certified and dated by the responsible manager, indicating positions which are higher, lower and equivalent to the position giving rise to the grievance, and their levels.

[18]      Under the heading "Committee Deliberations", the policy states:

The committee may recommend that the current classification decision be confirmed, that there be a change in the evaluation, or that the position be reclassified to a higher or lower level within the same or different occupational group. The effective date for the recommendation shall be the date, certified by management, on which the work was assigned to the position, except in cases where a downgrading is recommended. [Emphasis added.]

[19]      In Appendix I of this policy, under the heading "Committee Deliberations", we find the following:

This section is the heart of the report and must clearly indicate how the committee arrived at its recommendation. It should analyse the grievor's work in relation to the classification standard(s), the arguments made by or on behalf of the grievor and management's information, and provide a detailed explanation for the committee's evaluation. It should state why the committee evaluated the position in the specific category and occupational group and level, what, if any, other categories or groups were considered and the reasons why these were considered inappropriate. If the existing category, group, level and rating are being confirmed, a complete rationale must, nevertheless, be developed. Statements such as "No change to present rating" are not acceptable. [Emphasis added.]

[20]      In Chong, supra, McKeown J. set aside the decision of a deputy head's nominee which had approved the decision of the Classification Grievance Committee recommending that the applicants' positions in the Department of Citizenship and Immigration, in the province of British Columbia and the Yukon, be classified at the PM-03 group and level. McKeown J. considered that the policy set out by the Treasury Board required a comparison between positions in Ontario (classified PM-04) and those considered in the grievance, and the Committee had failed to do this. At paragraph 45 of his reasons, he wrote:

¶ 45         In my view the Classification Standard is not limited to comparing the grievors' positions with bench-mark positions. The Classification Standard states that the "ultimate objective of job evaluation is to determine the relative value of positions in each occupational group. The relation of the positions being rated to positions above and below it in the organization is also studied". The grievors submit that the closest job description to the B.C.-Yukon one is the one for the Ontario job description and, accordingly, although it was not a bench-mark position, the committee was bound to consider why a different classification should be assigned to the B.C.-Yukon position. There may be very good reasons for the distinction between the two positions but there is nothing in the evidence upon which such a conclusion could be made. While I agree with the respondents that the committee is entitled to curial deference, and that the findings of fact by such body should not be found to be erroneous unless they were perverse or capricious, particularly given that by virtue of subsection 96(3) of the PSSRA the decision of the committee is final and binding. However, when the committee clearly misapprehends the grievors' position and states that the grievors were seeking were reclassification of the Ontario position and ignores relevant evidence, it is a patently unreasonable error. The affidavit of Ms. Clément indicates that the committee did not consider the information about the Ontario position. As I stated earlier, it is open to the committee to find that the Ontario position required more responsibility. It is not for me to determine if the two positions are the same. I can only say that the two job descriptions appear to be identical except that the B.C.-Yukon position has three additional responsibilities; this is further confirmed by the fact that the Ontario job description was based on the B.C.-Yukon job description. The Treasury Board guidelines insist on equity and consistency and, without proper consideration of the Ontario position, it is difficult to determine whether these aims have been met in the instant grievance. It is patently unreasonable to say that the Ontario position is not relevant when the job descriptions are the same and the same deputy head has approved both classification standards. Surely, jobs that are similar within a department are more relevant than jobs outside a department; they are, in any event, equally relevant. The committee would certainly be entitled to take into account regional differences. Principles of equality and consistency require the two jobs whose job descriptions appear to be the same to be classified equally unless there are reasons for treating them differently. The grievors have stated that there are no material differences between the two positions. To ignore the Ontario position is contrary to common law and the policies of the Treasury Board. [Emphasis added.]

[21]      In Lapointe v. Canada, [2004] F.C. 244, Mosley J. quashed a Grievance Committee decision on the ground of several breaches of procedural fairness, including the failure to analyze or comment upon an argument put forward by the applicants. At paragraphs 56, 57 and 58 of his decision, he wrote this:

¶ 56        At the hearing of this matter, the applicants emphasized that the reasons for the decision under review, namely the Committee's report, fail to provide any analysis or comment on their submissions related to the alleged unwritten classification principle that a subordinate and superior can never be classified at the same group and level.

¶ 57       The Committee did not address the applicants representations on this issue other than to state that the organizational context of positions had always been an "integral part" of the PM occupational group classification process and could not be ignored. This in no way provides an answer to the heart of the applicants' grievance, namely, that the notion that two positions within an organization that are subordinate and superior to each other, from an organizational standpoint, cannot be classified at the same level, should not be applied as a binding rule within the classification grievance process, and particularly, should not apply to their situation. While the Committee contrasted the applicants' position with the Regional Directors' position, it did not address the applicants' challenge to the analytical framework underpinning such contrast.

¶ 58       Furthermore, the Committee also concluded, after reviewing the applicants' information concerning the functions and duties contained in work descriptions belonging to other organizations, that there were "substantial differences" in the mandate, targeted clientele, organizational structure and "work engineering" of each organization that contributed to the evaluation of such other positions. There is no further elaboration as to what exactly the "substantial differences" were with the bench-mark positions put forth by the applicants, as compared to their own job description. In my view, the Committee's report should have included an analysis setting out the differences between the grieved position and the suggested bench-mark positions. In this sense, the reasons for the decision under review are inadequate, and another component of procedural fairness was breached.

[22]      The respondent's counsel referred to several cases in support of the following principles:

(1)        a tribunal is not required to refer in its reasons to all the evidence or conclusions which led to its decision;

            (2)        procedural fairness does not require that all the arguments made and all the points raised at a hearing be mentioned in the written reasons: a court may not undertake a microscopic examination of the reasons for the decision;

            (3)        once there is evidence supporting the conclusions of fact arrived at by an arbitrator, this Court cannot rule on the view taken of the evidence by the arbitrator, despite the fact that it might have come to a different conclusion.

[23]      In my opinion, these principles do not apply in the case at bar. According to the guidelines laid down by the Treasury Board, the Committee had to decide whether the positions held by the applicants were equivalent to the BI-04 positions found in the Agency. The Committee failed to make this comparison as required by the policy.

[24]      In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, the Supreme Court of Canada held that the exercise of a Minister's discretion may be reviewed if the decision was based on a failure to comply with guidelines. This is what the Court wrote, at paragraph 36 of its judgment:

¶ 36         The Court specified in Baker, supra, that a nuanced approach to determining the appropriate standard of review was necessary given the difficulty in rigidly classifying discretionary and non-discretionary decisions (paras. 54-55). The Court also made it clear in Baker that its approach "should not be seen as reducing the level of deference given to decisions of a highly discretionary nature" (para. 56) and, moreover, that any ministerial obligation to consider certain factors "gives the applicant no right to a particular outcome or to the application of a particular legal test" (para. 74). To the extent this Court reviewed the Minister's discretion in that case, its decision was based on the ministerial delegate's failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers. [Emphasis added.]

[25]      Here, the Committee did not comply with the Treasury Board's guidelines.

[26]      For these reasons, this application for judicial review is allowed, the Committee's decision quashed and the applicants' grievance referred back to the Committee for a ruling solely on the comparison between the positions held by the applicants and the Agency's classification BI-04.

OTTAWA, ONTARIO

September 30, 2004

Certified true translation

Jacques Deschênes, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                          T-928-03

STYLE OF CAUSE:                                          GEORGES LAPLANTE, JACQUES AUDETTE, DANIEL COUTURE and CAROL GAUVIN v. CANADIAN FOOD INSPECTION AGENCY

PLACE OF HEARING:                                    Ottawa, Ontario

DATE OF HEARING:                                      June 15, 2004

REASONS FOR ORDER BY:                         Lemieux J.

DATED:                                                             September 30, 2004

APPEARANCES:

Annie Berthiaume                                                 FOR THE APPLICANT

Jennifer Champagne                                              FOR THE RESPONDENT

SOLICITORS OF RECORD:

Nelligan, O'Brien, Payne s.r.l.                               FOR THE APPLICANT

Ottawa, Ontario

Treasury Board Legal Branch                               FOR THE RESPONDENT

Ottawa, Ontario