Trépanier v. Canada (Attorney General), 2004 FC 1326

Date: 20040928

Docket: T-279-03

Citation: 2004 FC 1326

Ottawa, Ontario, the 28th day of September 2004

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

JEAN TRÉPANIER ET AL. (SEE APPENDIX A)

Applicants

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]         The issue in the case at bar concerns an application for judicial review of the decision by the Human Resources Program Classification Director to dismiss the applicants' grievances regarding classification, on the ground that they were filed when the prescription period had expired.

Facts

[2]         The facts in the case at bar are straightforward. Between February 24, 2000, and September 24, 2002, the applicants filed grievances challenging their job descriptions and the classification of their respective positions based on the fact that their employer had substantially and gradually altered their duties over several years. On January 15, 2003, nearly three years later, the Director took the decision to dismiss these grievances as they were beyond the prescription period.

[3]         The applicants filed a notice of application for judicial review of that decision on February 17, 2003.

This Court's jurisdiction

[4]         Since the Supreme Court of Canada judgment in St. Anne Nackawic Pulp and Paper Co. Ltd. v. Canadian Paper Workers' Union, Local 219, [1986] 1 S.C.R. 704, it has been settled law that the courts have no jurisdiction to resolve a dispute between an employee and his or her employer when a sufficient alternative remedy exists under the legislation. Estey J. wrote, at page 718 of the judgment:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law . . . The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.

[5]         Estey J. further held that recourse to the courts in such matters rarely goes beyond interlocutory applications and actions for damages. When a case turns on the application, interpretation or performance of a collective agreement, including the grievance process, reference must be had to the scheme created by the Act.

[6]         More recently, in Johnson-Paquette v. Canada, [2000] F.C.J. No. 441 (QL), the Federal Court of Appeal reiterated that the PSSRA provides a complete code governing labour relations, and this excludes the jurisdiction of the ordinary courts:

10.            Parliament's will to exclude the intervention of the courts in labour relation disputes may therefore be expressly stated or arise by necessary implication. Where, as is the case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given section of activity and has made the outcome of the legislated processes final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts. (Footnote omitted.)

[7]         On this point, the respondent submitted that it is the Public Service Staff Relations Board (the Board) which has jurisdiction to hear the case pursuant to section 23 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the PSSRA). The applicants said nothing about this point.

[8]        Section 23 of the PSSRA gives the Board jurisdiction to examine and inquire into complaints about failure by the employer or an employee organization, or any person acting on behalf of the employer or employee organization, to observe the regulations adopted pursuant to section 100 of the PSSRA:

[9]         The P.S.S.R.B. Regulations and Rules of Procedure (1993), SOR/93-348 (the Regulations) were adopted pursuant to section 100 of the PSSRA. Sections 71 and 74 of the Regulations indicate the deadlines for filing and responding to grievances.

[10]       At first sight, under paragraph 23(1)(d) of the PSSRA, it appears that the Board has jurisdiction over the case at bar as we are concerned with the parties' failure to observe the provisions of the Regulations regarding grievances (see Pollack v. Reid, [1994] C.P.S.S.R.B. No. 82 (Public Service Staff Relations Board) (QL), Buchanan v. Treasury Board (Correctional Service of Canada), [2002] C.P.S.S.R.B. No. 35 (Public Service Staff Relations Board), and Woodland and Treasury Board (Agriculture Canada), [1992] C.P.S.S.R.B. No. 64 (Public Service Staff Relations Board) (QL)).

[11]       However, section 23 of the PSSRA provides that the Board may have before it a "complaint", not what is essentially an appeal from a final decision. I feel that in the case at bar this remedy does not represent an alternative to intervention by the courts through judicial review.

[12]       Subsection 96(3) of the PSSRA provides that a decision at the final level of the procedure, except for grievances which may be referred to adjudication under section 92, is final and binding and an action provided for by the Act can be of no assistance to the parties.

[13]          It is clear from reading the provisions of subsection 92(1) of the PSSRA that the grievance before the Court here is not one which can be referred to adjudication, since it has to do with job classification.

[14]       As subsection 96(3) of the PSSRA clearly indicates, the Director's decision is "final and binding" and no action before the Board exists for its review. The grievance has actually been resolved, since the decision to dismiss it for being prescribed has the effect of terminating the proceedings for the applicants, who moreover are deprived of a remedy in the Act by operation of subsection 96(3).

[15]       In this regard reference should be made to a decision from this Court in Pieters v. Canada (Attorney General), 2004 FC 342, [2004] F.C.J. No. 435 (QL), in which the applicant's grievance was dismissed because it was filed beyond the deadlines specified in the collective agreement. O'Reilly J. held that pursuant to subsection 96(3) of the PSSRA the decision was final and binding, and I feel this conclusion has to be applied in the case at bar.

8. On the first issue, the Administrator's decision deserves considerable deference. Indeed, such decisions are considered "final and binding" under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, s. 96(3).

(Emphasis added.)

[16]       It is also worth referring to the reasoning of Reid J., speaking for the Ontario Divisional Court in Roosma v. Ford Motor Co. of Canada Ltd. (1988), 66 O.R. (2d) 18. Two employees had filed grievances and decisions had been rendered on preliminary points of a procedural nature. An appeal followed. The Court concluded that an appeal was allowed only if the decision could be described as "final". Reid J. held that a decision is regarded as final if its effect is to put an end to the proceedings and dispose of the rights of the parties involved.

The accepted test of a final decision or order depends on its effect, not on the proceedings by which it was achieved. It is final if it disposes finally of a claim or issue. An interlocutory decision does not. (References omitted.)

Thus, on an interlocutory motion a decision may be made to release a party from the proceedings. That is a final decision because it ends a party's involvement in the proceedings. It is quit of them. But a decision that a party may not be released is not a final one for that party is not quit of the proceedings. This is the accepted test.

[17]       In the case at bar, the decision to dismiss the grievance as being prescribed is clearly a final decision, the effect of which is to end the proceedings for the parties involved. For all these reasons, I consider that reference to the Board pursuant to subsection 96(3) of the PSSRA is not an option available to the applicants. Consequently, I must consider the application for judicial review on the merits.

Standard of judicial review

[18]       The applicants submitted that the applicable standard of judicial review in the case at bar is that of the correct decision, as the computation of deadlines is a jurisdictional matter and the Director does not have the special expertise to make that determination.

[19]       The respondent argued that the determination that the applicants' classification grievances were beyond the deadline falls within the Director's authority. The Director has expertise in classification and a thorough knowledge of the policies, procedures and rules of the employer applicable to classification grievances. The respondent added that computation of deadlines is a factual exercise, and so the applicable standard of review is that of the patently unreasonable decision.

[20]       In Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Supreme Court of Canada repeated that the pragmatic and functional approach used in U.E.S. Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and Pushpanathan v. M.C.I., [1998] 1 S.C.R. 982, must be applied in judicial review situations to determine the applicable degree of judicial deference. The pragmatic and functional approach requires analysis of four background factors.

(1)         Presence of privative clause or right of appeal

[21]      In the case at bar, subsection 96(3) is a strong privative clause that favours great judicial restraint.

(2)         Relative expertise

[22]       Subsection 71(3) of the Regulations contains no legal question. Calculation of the twenty-five-day deadline is a purely factual matter which is certainly within the Director's jurisdiction. As the respondent pointed out, the Director has great expertise in classification and a thorough knowledge of the policies, procedures and rules of the employer on classification grievances. That merits great deference.

(3)         Purpose of Act

[23]       The Act in the case at bar is polycentric legislation, as it is intended to resolve questions involving contradictory policy objectives or the interests of different groups, and its purpose is not just to oppose the government to the individual. Consequently, greater restraint appears to be indicated.

(4)         Nature of question

[24]       Finally, the fourth factor to consider in the functional and pragmatic approach is the nature of the question.

[25]       In IBM Canada Ltd. v. Hewlett-Packard (Canada) Ltd., [2002] F.C.J. No. 1008 (QL), (2002), 291 N.R. 262, the Federal Court of Appeal held that a finding that a complaint is prescribed is a matter of fact and does not involve the tribunal's jurisdiction. In this regard, Décary J.A. wrote, at paragraph 16 of the judgment:

The temptation to qualify certain issues as "jurisdictional" for the purpose of attracting a less deferential standard is to be resisted (see Canada v. McNally Construction Inc. and Abco Industries Limited, 2002 FCA 184, per Stone J.A. at para. 23). It is within the Tribunal's jurisdiction to decide whether a complaint is time-barred; there is no legal issue as to the interpretation of subsection 6(1) of the Regulations; the determination in the case at bar of the starting point is a pure question of fact; and the Tribunal's knowledge of the procurement process places it in the best position to decide when a complainant became aware or reasonable should have become aware of the basis of a complaint.

[26]       This logic is also applicable in the case at bar. The Director's decision was based on an assessment of the facts in the record. This requires great deference from this Court.

[27]       In view of this analysis, I conclude that the applicable standard of review in the case at bar is that of the patently unreasonable decision. This conclusion is consistent with that arrived at by O'Reilly J. in Pieters on an almost identical point.

As mentioned, the Administrator made two findings. The first was purely a question of fact - whether the grievance had been filed out of time. The second was a question of law - whether expiry of a term position can amount to a dismissal.

On the first issue the Administrator's decision deserves considerable deference. Indeed, such decisions are considered "final and binding" under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, s. 96(3). In addition, the Administrator had overall supervisory responsibility for personnel at the Registry and considerable experience and expertise in that regard. I should only intervene if I find his decision to be patently unreasonable.

[Emphasis added.]

Analysis on the merits

Whether applicants acted within prescribed deadlines

[28]       The applicants contended that their classification grievances were in fact filed within the twenty-five-day deadline mentioned in subsection 71(3) of the Regulations. Unfortunately, there is no evidence in the record to that effect.

[29]       The applicants did not establish what actions, omissions or steps taken by their employer had the effect of changing their conditions of employment. For this reason, it is impossible for this Court to decide whether the grievances were filed within the specified deadlines, that is within twenty-five days of the day on which they learned of the changes, and to determine whether the Director made a mistake. Accordingly, I dismiss this argument by the applicants.

[30]       The applicants further maintained that, under subsection IV.A.5 of the Classification Grievance Procedure established by the Treasury Board Secretariat, the Director had a duty to reclassify the positions in question after making a decision on the grievance relating to the job description.

[31]       Unfortunately, the applicants submitted no evidence in the record that the applicants' job description grievances were dealt with. It is thus impossible for this Court to determine whether the Director failed to perform his duties under that procedure.

Whether breach of rules of procedural fairness

[32]       The applicants further submitted that the Director did not observe the rules of procedural fairness in handling their grievances, as he ignored the classification grievance processing practice already in place for a number of years and suddenly, without informing the applicants, decided to follow the provisions of the Regulations to the letter. The applicants considered that this conduct vitiated the Director's decision.

[33]       The practice in question was that when three grievances are filed, that is grievances challenging the job description, salary and employment classification, the parties place the classification grievance in suspense until the grievance on the job description is resolved.

[34]       In Brink's Canada Ltd. v. Canada Council of Teamsters et al., [1995] F.C.J. No. 1114 (QL), the Federal Court of Appeal dismissed the defendant's submission based on the existence of a legitimate expectation. Beginning at paragraph 21 of the judgment, MacDonald J.A. gave a summary of the leading cases on this principle:

21             In Council of Civil Service Unions v. Minister of Civil Service [see footnote 13 below], Lord Fraser of Tullybelton gives the following description of the doctrine of legitimate expectation:

Footnote 13: [1985] A.C. 374 (H.L.), at p. 401.

But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law. This subject has been fully explained by my noble and learned friend, Lord Diplock, in O'Reilly v. Mackman [1983] 2 A.C. 237 and I need not repeat what he has so recently said. Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue . . .

22             Lord Fraser goes on to say that to determine if a regular practice creates a legitimate expectation:

The test of this is whether the practice . . . was so well established . . . that it would be unfair or inconsistent with good administration for the Government to depart from the practice in this case. [my emphasis]

. . . . .

24             In Re Attorney-General of Canada and National Anti-Poverty Organization et al.; Bell Canada International et al. [see footnote 15 below], Stone J.A. states that the legitimate expectation doctrine was:

Footnote 15: [1989] 3 F.C. 684 at 708.

. . . nowhere better described than by Lord Fraser of Tullybelton in Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374 (H.L.), at p. 401.

25             He goes on to further endorse Lord Fraser's decision when he determines that for the doctrine to have any application, it is necessary for a party to lead evidence that establishes the existence of a "regular practice" [see footnote 16 below].

Footnote 16: Hugessen J.A. also employs the doctrine of legitimate expectation in Bendahmane v. Canada [1989] 3 F.C. at 27.

26             Even if the applicant can legitimately expect the Board to follow regular procedures not required by the Code, in my opinion, the applicant carries a significant onus to prove that a procedure has been a regular practice of the Board over an extended period of time.

[Emphasis added.]

[35]       This passage illustrates the need for a party to clearly establish the alleged practice.

[36]       The evidence submitted by the applicants contains gaps at all levels. We do not know the dates of the grievances of all the applicants. We do not know when the changes to their duties took place nor the nature of those changes. We do not know whether the grievances relating to job descriptions were dealt with. Further, there is no evidence in the record regarding the collective agreement governing relations between the Director and the applicants.

[37]       The applicants submitted the decision of Lois Pearce, the deputy head's nominee responsible for classification grievances, on the grievance of Mr. Simard, the deponent for the applicants, as proof of the existence of the alleged practice. That evidence cannot serve to support the existence of the alleged practice, as it does not indicate there was in fact a decision on the grievance relating to Mr. Simard's job description before the decision on his classification, nor that there was a decision within the 25 days prior to the grievance.

[38]       Further, Mr. Simard did not mention whether his grievance was filed on account of the same gradual and substantial changes allegedly imposed on the applicants' duties. It is thus impossible to link the decision made regarding him to the facts relied on by the applicants in the case at bar.

[39]       I come to the same conclusion on the grievance of Serge Guérin, also filed by the applicants to show the existence of the alleged practice. Though he filed two grievances, one regarding classification and one challenging his job description, and the classification of his position was altered, the applicants did not show that there was not a decision regarding Mr. Guérin's classification less than 25 days before the decision to alter his classification. These documents are thus of no assistance in establishing the existence of the practice.

[40]       Further, I consider that the conclusions suggested by the applicants on the basis of certain comments found in the affidavit of Ms. Morin-Smith, classification grievance advisor in the Classification Division of the Treasury Board Secretariat, to the effect that the practice existed, do not constitute sufficient evidence to support a submission of legitimate expectation and a breach of the rules of procedural fairness.

[41]       Judicial review must be made exclusively on the basis of the evidence entered in the record. No additional evidence can be considered by the Court in arriving at its conclusions (see Noor v. Canada (Human Resources Development), [2000] F.C.J. No. 574 (QL) (F.C.A.), Rodbom v. Canada (Department of Citizenship and Immigration), [1999] F.C.J. No. 636 (F.C.A) (QL), Asafov v. Canada (Department of Citizenship and Immigration), [1994] F.C.J. No. 713 (F.C.T.D.) (QL)).

[42]       The filing of two grievances on the same day, as the applicants Messrs. Simard and Guérin did, raises important questions and could be an indication that there was in fact a practice providing for such a procedure. On the other hand, as I illustrated above, a number of questions arise that were not addressed by the evidence in the case at bar. Further, the evidence in the record is insufficient to clearly establish that there was a practice agreed upon between the parties, which superseded the provisions of the Regulations and altered the conditions of admissibility of classification grievances.

[43]       For these reasons, I cannot find in the applicants' favour. Any conclusion to that effect would be purely speculative.

Whether doctrine of estoppel applicable here

[44]       In The Queen v. Canadian Air Traffic Control Association, [1984] 1 F.C. 1081, it was alleged that the Minister of Transport had previously allowed his employees involved in administrative inquiries to retain the services of counsel, contrary to the provisions of the collective agreement. The Federal Court of Appeal, per Pratte J.A., dismissed this contention. At p. 1085 of the judgment, Pratte J.A. explained this decision as follows:

While the doctrine of promissory estoppel is far from clear, it seems established that there cannot be such an estoppel in the case of a promise, by words or by conduct, the effect of which is clear and unambiguous. Here, the course of conduct that would give rise to the estoppel is the conduct of the authorities of the Department of Transport which, for many years apparently, let employees involved in administrative investigation retain legal counsel to represent them at those investigations. I do not see, in that course of conduct, a clear and unambiguous promise that the Department either agreed with the union's interpretation of article 6.01 or would not in the future rely on the true meaning of article 6.01. Moreover, it seems established, also, that the doctrine of promissory estoppel, in addition to clear and unambiguous promise, requires that such a promise must have led the promisee to act differently from what he would otherwise have done.

[Emphasis added.]

[45]       Once again, evidence of the practice is crucial in establishing the validity of an allegation based on estoppel.

[46]       Because of the gaps in the evidence in the record which I have mentioned, in my opinion the applicants have not shown the existence of such a regular, well-established, prior practice agreed upon with the employer. Accordingly, it is also impossible to claim that the doctrine of estoppel applies.

Conclusion

[47]       Based on the evidence in the record, I cannot find that the Director's decision was patently unreasonable. For these reasons, the application for judicial review is dismissed.

ORDER

THE COURT ORDERS:

1.          the application for judicial review of a decision by the Classification Director of the Human Resources Program, dated January 15, 2003, dismissing the classification grievances filed by the applicants on the ground that they were filed out of time, is dismissed.

Certified true translation

Jacques Deschênes, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-279-03

STYLE OF CAUSE:                                                   Jean Trépanier et al. (see Appendix A) v. The Attorney General of Canada

PLACE OF HEARING:                                             Ottawa, Ontario

DATE OF HEARING:                                               June 21, 2004

REASONS [for order or judgment]:       Blanchard J.

DATED:                                                                      September 28, 2004

APPEARANCES:

Sean McGuy                                                                 FOR THE APPLICANTS

Annie Berthiaume

Jennifer Champagne                                                       FOR THE RESPONDENT

SOLICITORS OF RECORD:

Nelligan, Power, Payne s.r.l.                                          FOR THE APPLICANTS

1900-66 Slater Street

Ottawa, Ontario K1P 5H1

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario K1A 0R5