Professional Institute of the Public Service of Canada v. Canada (Customs and Revenue Agency), 2004 FC 507

Date: 20040401

Docket: T-598-00

Citation: 2004 FC 507

Ottawa, Ontario, this 1^st day of April, 2004

Present:           The Honourable Justice James Russell

BETWEEN:

          THE PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA

                                                                                                                                            Applicant

                                                                          and

                                   CANADA CUSTOMS AND REVENUE AGENCY

                                                                                                                                        Respondent

and

PUBLIC SERVICE ALLIANCE OF CANADA

Intervener

REASONS FOR ORDER AND ORDER

NATURE OF APPLICATION

[1]                This is an application for judicial review brought by the Professional Institute of the Public Service of Canada ("Applicant"). The Applicant represents over 9000 auditors employed by the Respondent, the Canada Customs and Revenue Agency ("Agency").

[2]                The Agency is required by statute to develop a program for staffing, including "recourse" for employees affected by staffing decisions. When it was created in 1999, the Agency implemented a staffing program ("Program"). The Program deals with the appointment and transfer of employees to and within the Agency. The Applicant submits that the recourse procedures developed and implemented as part of the Program do not comply with the minimum procedural attributes that are required by the principle of fairness. By developing and implementing such deficient procedures, the Applicant says the Agency failed to act reasonably and failed to develop a Program that complies with its statutory obligations.

[3]                The Applicant submits that the recourse system implemented by the Agency as part of the Program is so unreasonable that it does not constitute a true system of recourse. The following principal reasons are advanced for this conclusion:

a.          it does not require an unbiased, third-party decision maker to rule on all issues related to the selection process;

b.          the Independent Third Party Reviewer available to review limited portions of the selection process lacks independence because he or she is financially dependent upon, and administratively controlled by, the Agency;

c.          the Independent Third Party Reviewer does not have the authority to require adequate disclosure of relevant information to complainants;

d.          the decision-maker at the Assessment stage may request information from "experts" without allowing a complainant to respond to the claims of those experts;

e.          the decision-makers at all stages are prohibited from examining all relevant considerations to ensure that candidates are treated consistently; and

f.           the Independent Third Party Reviewer does not have adequate remedial power to correct errors that he or she identifies.

[4]                The Applicant seeks a declaration by this Court that, because of the unreasonable errors and procedural inadequacies referred to above, the Agency has not implemented a staffing recourse mechanism as required by its governing statute.

BACKGROUND

History

[5]                The Agency came into existence on November 1, 1999 when the Canada Customs and Revenue Agency Act ("CCRAA") came into force. Prior to that date, the auditors employed by the Agency were part of the Department of National Revenue and were employed by the Treasury Board Secretariat.

[6]                Subsection 4(1) of the CCRAA establishes a body corporate called the Canada Customs and Revenue Agency. The Agency carries out the mandate of the former Department of National Revenue and is responsible for supporting the administration and enforcement of federal legislation dealing with tax, trade and customs.

[7]                The Agency is a separate employer under the Public Service Staff Relations Act ("PSSRA"). It may determine its own requirements with respect to human resources.

[8]                Parliament has conferred on the Agency the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.

[9]                When they were Treasury Board employees, the auditors were covered by the staffing recourse mechanism set out in the Public Service Employment Act ("PSEA").

[10]            Once the CCRAA came into force, the PSEA no longer applied to those auditors transferred to the Agency. Staffing recourse for employees of the Agency is now governed by the CCRAA.

[11]            In exercising its authority, the Agency is not subject to the provisions of the PSEA. Instead, Parliament has provided in the CCRAA that the Agency must develop its own staffing program:

[12]            Section 8 of the PSEA provides as follows:

[13]            In particular, the CCRAA requires that the Agency develop a staffing program, including a method of recourse, for its employees as per ss. 54(1) of the CCRAA. Subsection 54(2) of the CCRAA prohibits the parties to a collective agreement from negotiating staffing provisions governed by the Agency's staffing program.

[14]            The statutory grievance procedure set out in s. 91 of the PSSRA is unavailable to those employees of the Agency who feel aggrieved over staffing matters. Subsection 91(1) of the PSSRA prohibits grievances where there is an "administrative procedure for redress ... provided in or under an Act of Parliament." The Agency has taken the position that its staffing policy, developed pursuant to ss. 54(1) of the CCRAA, amounts to "an administrative procedure for redress," thereby preventing its employees from accessing any other grievance procedure concerning staffing matters.

The Agency's Staffing Program

[15]            On 1 November 1999, the Agency implemented the Program it had developed in accordance with ss. 54(1) of the CCRAA.

[16]            The Program describes the processes used by the Agency to fill positions within the Agency and the recourse available to employees affected by those processes. It consists of program components, approved by the Agency's Board of Management, which deal with specific topics such as delegation of authority, staffing processes and recourse for staffing; it also contains staffing directives approved by the Public Service Commissioner on related topics that are attached as annexes to the Program.

[17]            Parliament has also authorized the Agency to establish staffing principles in its corporate business plan to govern the Program. The Agency's staffing principles are as follows:

Non-partisanship:                 The workforce must conduct itself in a manner that is free from political and bureaucratic influence. Staffing decisions must be free from political and bureaucratic influence.

Representativeness:              The composition of our workforce reflects the available labour market.

Competency:                          The workforce possesses the attributes required for effective job performance.

Fairness:                                 Staffing decisions are equitable, just and objective.

Transparency:                        Communications about staffing are open, honest, respectful, timely and clearly understood.

Efficiency:                              Staffing processes are planned and conducted having regard to time and cost, and linked to business requirements.

Adaptability:                          Staffing processes are flexible and responsive to the changing circumstances and to the unique or special needs of the organization.

Productiveness:                      Results in appointment of the necessary number of competent people for the proper conduct of business.

[18]            The PSEA does not apply to staffing in the Agency and the Public Service Commission ("Commission") has no authority over the appointment process. However, under ss. 56(2) of the CCRAA, the Commission may periodically review the compatibility of the Agency's staffing principles with those governing staffing under the PSEA.

[19]            Under the Program, there are three stages in the selection process ("Selection Process") for candidates for any particular job.

[20]            The Selection Process is one of the principal mechanisms used by the Agency for the promotion and appointment of its staff. The term "Selection Process" means the procedure whereby individuals may express interest in a job opportunity and be considered for assessment and selection for appointment.

[21]            The first stage involves a "Review of Pre-requisites," under which employees complete an expression of interest or request pre-qualification. Pre-qualification is a process whereby individuals identify career interests and can be assessed for pre-qualification for specific positions.

[22]            At the Pre-requisite stage, the hiring manager, or his or her delegate (for example, a selection board), reviews every applicant's expression of interest against the pre­requisites listed in a Statement of Staffing Requirements. This statement is included in every Notice of Job Opportunity. Applicants are responsible for providing the information necessary to demonstrate that they meet the pre­requisites.

[23]            Only candidates who the Agency has determined meet the prerequisites for the job competition are considered for "Assessment," which is the next stage in the Selection Process. Assessments are conducted using standardized tests, written examinations, interview, and reference checks.

[24]            During the Assessment stage, the hiring manager or selection board assesses those candidates who meet the pre-requisites against the qualifications for the relevant position. Assessment is a comparison of a candidate's competencies or qualifications against established assessment criteria, not a comparison (or a ranking) of the candidates against one another.

[25]            Candidates who are found to be qualified enter a pool of qualified candidates from which the Agency may select persons for Placement. They are informed of their Assessment results in writing and of the period for which they can be considered for Placement.

[26]            "Placement" is the final stage of the Selection Process. At the Placement stage, a selection is made from amongst qualified candidates based on established specific job requirements linked to business needs. Placement does not result from a ranking of applicants according to merit.

[27]            When a manager decides to staff a position, he or she will choose from among the qualified candidates in the pool based upon pre-established, job-specific requirements linked to the business needs of the Agency. Placement criteria could include, for instance, the level of competency or qualification, the nature and extent of work experience, and considerations of employment equity.

[28]            The manager will select the appropriate placement criteria from among those listed in the Statement of Staffing Requirements and evaluate/consider the candidates against them. Placement, like Assessment, involves the comparison of candidates against specified criteria, not a comparison or ranking of candidates.

[29]            Those who are qualified but not placed are advised of who is placed, the criteria for Placement and their recourse rights.

The Agency's Staffing Recourse

[30]            Candidates who are dissatisfied with decisions made at any stage of the Selection Process may seek recourse in accordance with the Program. Recourse provides an opportunity for individuals to raise their concerns so that they can be addressed in a timely manner. The focus of recourse is on the treatment of the individual in the Selection Process and not the evaluation of other candidates.

[31]            The Agency has developed three levels of staffing recourse: Individual Feedback, Decision Review, and Independent Third Party Review. Individual Feedback is available at any stage of the Selection Process and must be completed before any other recourse is attempted. Decision Review is available only if a candidate is screened out at the Assessment or Placement stages. Independent Third Party Review is available only to those candidates who make it to the Placement stage and who opt not to engage in Decision Review.

[32]            At each stage of the staffing recourse, the only ground for consideration is whether the employee was treated arbitrarily. At no point in the staffing recourse may a decision maker engage in a comparative examination of the treatment of one candidate with another. The term "arbitrary" is defined as follows in the directives for the Program:

In an unreasonable manner, done capriciously; not done or acting according to reason or judgement; not based on rationale, on established policy; not the result of a reasoning applied to relevant considerations; discriminatory (i.e. difference of treatment or denial of normal privileges to persons because of their race, age, sex, nationality, religion or union affiliation).

[33]            The kind of recourse available to employees under the Program is intended to be commensurate with the nature and significance of the staffing decision at issue. An outline of the recourse available at each stage is contained in the Directive on Staffing Recourse, which is Annex L to the Program.

[34]       Recourse under the Program is intended to be flexible, timely, effective and non-adversarial. The guiding principles include quick and early resolution of concerns, the promotion of a workplace culture of respect, open communication and an appropriate level of management accountability. By way of example, a candidate improperly excluded at the Pre-requisite phase can be admitted to the Assessment phase without having to wait for the end of the Selection Process.

1)        Individual Feedback

[35]            Individual Feedback is conducted by the person ("Authorized Person") first responsible for the staffing action.

[36]            Individual Feedback is available to candidates screened out at the Pre-requisite stage. Candidates challenging Assessment and Placement decisions must seek Individual Feedback before pursuing additional recourse under the Program.

[37]            Individual Feedback allows employees to express any concerns they may have about a staffing decision, to receive further information about that decision, to obtain assistance in their career development plans and, where appropriate, to benefit from corrective action.

[38]            During Individual Feedback, the Authorized Person or his or her delegate will consider the employee's concerns, provide the employee with information respecting the decision at issue, respond to any questions the employee may have, review the decision in light of the employee's concerns and, where appropriate, take corrective measures. Those measures may include permitting an employee to continue as a candidate in a Selection Process.

[39]            The Program provides that Individual Feedback must be focussed on the treatment of the individual excluded from the Selection Process, and not on the evaluation of other candidates or employees. Individual Feedback is described as both a recourse mechanism and as a key element in the career management process that allows employees to receive input on development needs.

[40]            The hiring manager providing Individual Feedback is not entitled to divulge information about other candidates without their express written permission.

[41]            Individual Feedback may be provided verbally or in writing. Since the feedback session is intended to be both a recourse mechanism and a key element in the career management process, participation is limited to the employee concerned and the hiring manager. However, an employee may obtain assistance from others in organizing his or her case prior to the session.

[42]            Employees excluded from a job competition on the basis of a perceived failure to meet the prerequisites of the position are not entitled to have representation, and cannot have a person accompany them during the Individual Feedback session.

2)        Decision Review

[43]            Employees who are dissatisfied with the result of Individual Feedback in relation to the Assessment or Placement stages of the Selection Process may seek further recourse by way of Decision Review. This is conducted by the supervisor of the Authorized Person.

[44]            The reviewing supervisor has discretion regarding the manner of conducting the review. He or she will review the information provided by the parties (including the results of the Individual Feedback) and may make such additional inquiries and obtain such additional information as may be necessary to reach a decision. The reviewer must ensure that each party has a full opportunity to present his or her views. The Program does not specifically prohibit parties from calling witnesses during Decision Review.

[45]            Decision Review is conducted by the supervisor of the person responsible for the staffing action. Although the supervisor may conduct the review by paper, teleconference or in person, a preference is stated in favour of paper reviews. After reviewing the relevant documents, the reviewing supervisor may make additional inquiries as necessary, including asking questions of internal subject matter experts, or an expert from the Resourcing and Career Support Division, Human Resources Branch.

[46]            The employee is not specifically provided with an opportunity to review or comment on any additional information gathered by the supervisor, although there appears to be nothing in the Program to prevent this from occurring in practice.

[47]            At this stage, the employee affected may be accompanied by an individual of their choice. However, the individual accompanying the employee is prohibited from participating in any discussions that occur.

[48]            Where the supervising reviewer determines that there was an error in the Selection Process, the reviewer is accountable for ensuring that corrective action is taken in a timely manner.

3)        Independent Third Party Review

[49]            Independent Third Party Review ("ITPR") is available only to those employees who are screened out at the final phase of the Selection Process and who do not opt for Decision Review.

[50]            When an employee files a request for ITPR, the CCRA Office of Dispute Management ("ODM") decides, in its sole discretion, whether the matter may be sent to ITPR. Thus disputes over the jurisdiction of the Independent Third Party Reviewer ("ITPR Reviewer") are not handled by the ITPR Reviewer, but by the ODM without a hearing.

[51]            The ITPR Reviewer is chosen by ODM from a roster of reviewers who are engaged by the Agency under contract.

[52]            ITPR is conducted by independent parties outside the Agency. ITPR Reviewers are not employees, agents or directors of the Agency.

[53]            The procedures governing ITPR are set out in Guidelines developed by the Agency.

[54]            The dissatisfied employee must submit a written request for ITPR to the manager who made the Placement decision under review and to the ODM. The manager is encouraged to resolve the complaint informally. If the manager is unsuccessful, the ODM will assign the complaint to a ITPR Reviewer on the pre-established roster of reviewers. Ordinarily, the next ITPR Reviewer "in line" will be chosen, having regard for geographical location, language, availability and accessibility.

[55]            The ITPR Reviewer must excuse himself or herself if a conflict of interest or any other condition arises that might affect his or her impartiality.

[56]            ITPR may take many forms, ranging from a simple paper review to a full hearing. The ITPR Reviewer has discretion to determine the review procedure, taking into account the complexity of the case, the evidence the parties expect to call and the principles of fairness. Parties may be represented by an agent or by counsel and may call witnesses to give evidence before the ITPR Reviewer.

[57]            After considering the evidence and submissions of the employee and the hiring manager, the ITPR Reviewer must issue a final decision which is binding on the parties.

[58]            The ITPR Reviewer does not have the power to subpoena witnesses. The ITPR Reviewer's remedial power with respect to the Selection Process is also circumscribed. He or she may: order correction of an "error" in the process of Placement; recommend revocation of an appointed employee; or recommend involving another manager in the Placement decision. The ITPR Reviewer may not consider or make any orders concerning events taking place in the Review of Pre-requisites stage or the Assessment stage.

[59]            Managers are accountable for taking the corrective measures ordered by the ITPR Reviewer.

History of Proceedings

[60]            On March 27, 2000, the Applicant brought an application for a declaration that, contrary to s. 54(1) of the CCRAA, the Agency has failed to develop a program for staffing recourse. The Applicant also sought an order of mandamus requiring the Agency to implement a staffing recourse system in accordance with the requirements of the CCRAA.

[61]            On June 23, 2000, the Respondent brought a motion for an Order striking out the March 27, 2000, Notice of Application on the grounds that the Agency had already implemented its Program and had fully met its obligations under s. 54(1) of the CCRAA.

[62]            By Order dated January 29, 2001, Madam Prothonotary Aronovitch dismissed the motion to strike. Upon appeal of that order, O'Keefe J. allowed the appeal in part, concluding that the application for mandamus was bereft of any possibility of success because the Applicant had not made a prior demand of the Agency to adopt a proper staffing program. O'Keefe J. concluded that the application for a declaration could continue. A further appeal by the Respondent to the Federal Court of Appeal was dismissed.

PERTINENT LEGISLATION

[63]            The relevant sections of the Canada Customs and Revenue Agency Act, 1999 c. 17 are as follows:

ISSUES

[64]            The Applicant raises the following issues:

What is the standard of review concerning the decision of the Agency to create the staffing recourse procedure?

Must the Agency's staffing recourse mechanism adhere to the rules of natural justice in order to be reasonable?

Does the Agency's staffing recourse mechanism violate the rules of natural justice?

Is the Agency's staffing recourse mechanism unreasonable because it does not allow the decision maker to address all relevant considerations?

Is the Agency's staffing recourse mechanism unreasonable because of the absence of sufficient remedial power?                        

ANALYSIS

Availability of Judicial Review

[65]            In this application, the Court does not have before it an adjudicative decision or order in the sense of a set of reasons that can be subjected to review. There is only the Program itself, the product of a non-adjudicative decision that was made in consequence of the powers delegated to the Agency under s. 54(1) of the CCRAA.

[66]            This fact immediately raises two fundamental issues: whether the Program and, in particular, its recourse mechanism as implemented by the Agency are reviewable by this Court and, if they are, what standard of review is appropriate.

[67]            It has often been pointed out that, while all statutory grants of power are, in theory, legally limited and subject to review, there may well be practical considerations that dissuade a review court from interfering.

[68]            The somewhat heterogenous case law on this issue shows the Court adopting political, policy and legislative reasons as grounds for not interfering, but a general, guiding principle is hard to glean.

[69]            Gibson J., for instance, wrestled with this issue in Alberta v. Canada (Wheat Board), [1998] 2 F.C. 156 with particular reference to the meaning of "matter" under ss. 18.1(1) of the Federal Court Act and related Federal Court Rules, 1998. In that case, Gibson J. was confronted, inter alia, with an application for judicial review of the Canadian Wheat Board's grain delivery program and there was a concern as to whether that program was a "matter" in respect of which judicial review should lie.

[70]            After a thorough review of the relevant authorities and competing arguments, Gibson J. concluded that the grain delivery program in that case was beyond the reach of judicial review. When the case came before the Federal Court of Appeal, the Court considered and denied the appeal on the merits. However, the Court of Appeal also found it understandable "that the motions judge who dealt with the originating notice of motion, found that the appellants lengthy propositions lacked specificity and could not be the object of judicial scrutiny." See Alberta v. Canada (Canadian Wheat Board) (1998), 234 N.R. 74 at p. 78.

[71]            In the case at bar, of course, the Program is the staffing and recourse program created by the Agency pursuant to s. 54(1) of the CCRAA. The Program and its recourse provisions are somewhat complex but their impact is focussed on the auditors employed by the Agency. The Program is directed at the complementary needs of the Agency and its employees, so that it is not concerned with policy implementation in the same sense as was the grain delivery program in Alberta, supra. The scope of the Program, and the fact that it remains relatively untested, however, make it difficult to review in the absence of specific facts and decisions, and the way the Program has been put together through pre-adoption study and consultation means that it is not easily amenable to some forms of judicial review relief.

[72]            In my opinion, however, the most troubling consideration in this case is the provision for on-going review of the Program that is contained in the CCRAA itself.

[73]            Under ss. 56(1) of the CCRAA the Commission can report to the Agency on consistency issues and copy any report prepared to the Auditor General and the Treasury Board. Under ss. 56(2), the Commission may periodically review the compatibility of the principles governing the Program with those governing staffing under the PSEA and may report its findings in its annual report. Moreover, under s. 59, following its third full year of operations, and periodically after that, the Agency "must" have prepared, by a person or body other than the Agency, or a director or an employee of the Agency, an assessment of the recourse that the Agency provides or administers in its management of human resources, and the Agency "must" publish a summary of the assessment in its next annual report.

[74]            In total, these provisions provide an on-going and fairly comprehensive means of reviewing the whole Program from the perspective of both the Agency's business objectives and the interests of employees who need effective recourse.

[75]            My first concern is that Parliament has already provided a means for reviewing the Program per se, and its responsiveness to the interests of both employer and employee. This, in my opinion, seriously calls into question the appropriateness of this Court reviewing the Program at a fixed point in time for declaratory relief of the kind contemplated by the present application; an application that involves speculative consideration of issues rather than a particular decision or order made under the Program, or in accordance with the recourse mechanism.

[76]            My second concern is that, in terms of s. 18.1 of the Federal Court Act, I am not persuaded that Parliament intended this Court to review, in the manner contemplated by this Application, a complex staffing and recourse program implemented under a statute that already provides for an effective, on-going and comprehensive means of review.

[77]            In addition, the declaratory relief requested in this Application is that the Agency has failed to develop a program for staffing recourse, contrary to s. 54(1) of the CCRAA. This requires the Court to review issues of statutory interpretation and statutory implementation without the benefit of specific instances of unreasonableness or unfairness, and in a context where there is considerable room for theoretical debate and disagreement concerning how the recourse provisions of the Program will function in practice. Thus the grounds referred to by the Applicant are, in my opinion, speculative at this stage in the life of the Program. Although the Program has been implemented and its principal features have been reduced to print, the Applicant is asking the Court to intervene in a somewhat abstract debate without the benefit of a live dispute on a particular set of facts. There is much that is hypothetical about this Application and, in my opinion, this Court should decline to intervene by issuing declaratory relief where so much remains undetermined and debatable, awaiting specific instances of error that will bring to life the true nature of the Agency's recourse scheme.

[78]            Consequently, I am of the view that this application for judicial review and declaratory relief is ill-founded, premature and speculative and the Court should decline to entertain it. This conclusion is determinative of this Application. However, bearing in mind that an appellate court might not share my views on this issue, I will consider the other matters before me.

Standard of Review

[79]            In the event that the Program and its recourse mechanism should be considered reviewable in the manner urged upon me by the Applicant, the applicable standard of review needs to be considered. Once again, this issue is problematic in this case because there is no decision or order before me. The "matter" the Court is asked to review is constituted by the Program itself. The Applicant takes the position that a pragmatic and functional analysis will lead to the conclusion that reasonableness simpliciter is the correct standard to apply in this case, even though the Applicant also admits that "the definition of reasonableness simpliciter in Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17 is more suited for adjudicative decisions than non-adjudicative decisions such as present in the case at bar (sic)."

[80]            The Respondent insists that there are three distinct issues that have to be addressed under this topic. First of all, whether the Agency acted within the limits of its statutory authority is a question of law and jurisdiction that is reviewable against a standard of correctness. Secondly, whether or not the Program meets the principles of fairness (to the extent that this issue can be decided by this application) is a question of mixed fact and law and is reviewable against a standard of reasonableness. Thirdly, the form and content of the Program are a matter for the discretion of the Agency and a pragmatic and functional analysis would suggest a standard of patent unreasonableness should apply if they are reviewed.

[81]            One of the significant problems with this application is its breadth; it simply asks the Court to declare that the Agency "has failed to develop a program for staffing recourse as required by s. 54 of the Canada Customs and Revenue Agency Act." The grounds and arguments advanced by the Applicant are that the failure is to be found in the fact that the Program does not conform to the rules of natural justice, and the Program is unreasonable because it does not allow an examination of whether candidates are treated consistently and because an ITPR Reviewer does not have adequate remedial power.

[82]            In a situation such as this where the Court is asked to deal with a non-adjudicative matter and pronounce upon the legality of various elements of program design, a conventional pragmatic and function analysis takes on a significant complexity. There is, of course, no privative clause, but there is a built-in review procedure. The experience of the Agency is in relation to tax and customs matters but, because Parliament left the design of the Program to the Agency, the Agency consulted on staffing and recourse issues and thus acquired some knowledge and expertise in staffing matters that this Court does not have. These factors suggest to me that the Agency should be given some deference. The purpose of the legislation also suggests to me that the Agency is entitled to considerable deference, bearing in mind that the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, 2003 SCC 19">2003 SCC 19 (Q.L.) indicated that increased deference is called for where legislation is intended to resolve and balance competing policy objectives or the interests of various communities. It appears to me in the case at bar that the Agency, in devising the Program, had to balance the competing objectives and the interests of unions, management and unrepresented employees, at the very least.

[83]            On the other hand, when the nature of the question is looked at in this case, there are no facts for the Court to examine except the impugned aspects of the Program itself; and issues of fairness, consistency and remedial effectiveness are more within the competency of the Court, thus suggesting a lesser degree of deference.

[84]            My conclusion is that, in reviewing the natural justice, consistency and remedial aspects of the Program raised by the Applicant, the standard should be one of reasonableness simpliciter. In the event that the Court concludes the Agency has addressed the matters of concern in a way that does not offend against this standard, then the Agency will have acted correctly within the statutory authority provided by s. 54(1) of the CCRAA.

[85]            This means that the Court must engage in a significant searching and probing of the Program regarding the grounds advanced by the Applicant to test for defects, but so long as there is a line of reasoning that could reasonably lead the Agency to design the Program in the way it has, the Court should not intervene by granting the declaratory relief requested in this case.

The Grounds Raised

Must the Agency's staffing recourse mechanism adhere to the rules of natural justice in order to be reasonable?

[86]            The Applicant submits that there are two reasons why the Program and its recourse mechanism must conform to the rules of natural justice and procedural fairness.

[87]            First, the Applicant relies upon the decision of the Supreme Court of Canada in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781. At para. 21, the Supreme Court confirmed as follows:

Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legislature intended the tribunal's process to comport with principles of natural justice.

[88]            The rules of natural justice have not been ousted by necessary implication in the wording of the CCRAA. Accordingly, in the absence of express statutory language to the contrary, Parliament must have intended that the Agency would create a method of staffing recourse that adheres to the rules of natural justice and procedural fairness. If the recourse mechanism devised by the Agency does not conform to those rules, then it is not a true method of "recourse" as contemplated by s. 54(1) of the CCRAA.

[89]            Second, s. 2(e) of the Canadian Bill of Rights, S.C. 1960, c. 44, states as follows:

[90]            The Agency has not been exempted from the Canadian Bill of Rights. Therefore, s. 54 of the CCRAA must be construed to ensure the Agency is not authorized to design a recourse mechanism that denies employees the right to a fair hearing in accordance with the principles of fundamental justice.

[91]            For these reasons, the Applicant submits that the Agency is required to design a method of staffing recourse that adheres to the rules of natural justice and procedural fairness.

[92]            I see no reason to disagree with the Applicant on this issue.

Does the Agency's staffing recourse mechanism violate the rules of natural justice?

[93]            The Applicant argues that the rules of natural justice have two basic components: nemo judex in sua propria causa debet esse (the rule against bias or lack of independence) and audi alterem parem (the requirement to hear the other side). The Applicant submits that the staffing recourse mechanism designed by the Agency violates both of these components.

[94]            First of all, the Applicant says that all three levels of staffing recourse violate the rule against bias. For employees eliminated from a job competition at the Review of Pre-requisites or Assessment stages, appeals are decided by a decision-maker who is a management employee. In Individual Feedback, the decision is made by the same employee responsible for the decision under review. In Decision Review, the decision is made by that employee's supervisor. Accordingly, the decision-maker in these circumstances is not independent and unbiased.

[95]            The Applicant submits that ITPR also violates the principles of natural justice because of a lack of independence on the part of ITPR Reviewers. The three essential conditions of independence are security of tenure, financial security, and administrative control (Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at para. 75).

1)        Reasonable Apprehension of Bias

[96]            The Applicant argues that the ITPR Reviewer has neither financial security or administrative control. This is because the Agency (in most cases through the offices of the ODM):

a.         pays the ITPR Reviewer on a per case basis;

b.         sets out the maximum level of remuneration for the ITPR Reviewer;

c.         decides which people will form the pool of ITPR Reviewers available;

d.         decides which ITPR Reviewer in the pool will be assigned to each case;

e.         assesses the jurisdiction of the ITPR Reviewer (i.e. whether the case may be sent to third party review);

f.          determines what evidence may be brought before the ITPR Reviewer about employees other than the complainant;

g.         requires the ITPR Reviewer to inform it about a decision prior to its release; and

h.         prepares "sanitized" versions of decisions for distribution.

[97]            The Agency has complete discretion to choose the ITPR Reviewer, who is dependent upon the Agency's goodwill to have further cases assigned to him or her.

[98]            The Applicant points out that the jurisprudence is settled that a party to a labour dispute cannot nominate its own employee to sit on a tripartite board. This rule has been extended to any circumstances where the relationship between management and the nominee is such that there is a reasonable apprehension of bias because the nominee is financially dependent upon a party or a person with an interest in the outcome of the case. For example, a hospital cannot nominate the employee of another hospital where both are covered by substantially similar collective agreements and members of the same provincial association.

Re: Foothills Provincial General Hospital Board and United Nurses of Alberta, Local 115 et al. (1986), 27 D.L.R. (4^th) 665 (Alta. C.A.).

Re: Simmons and Government of Manitoba (1981), 129 D.L.R. (3d) 694 (Man. C.A.).

Refrigeration Workers Union, Local 516 v. Labour Relations Board of British Columbia (B.C.C.A.), [1986] B.C.J. No. 286 (C.A.).

[99]            The Applicant argues that if financial dependence creates a reasonable apprehension of bias in a nominee to a tripartite board, it is even more likely to create a reasonable apprehension of bias in a sole board member. Therefore, the Applicant says that, by giving itself the sole discretion to appoint ITPR Reviewers and paying them on a per case basis (thus creating a situation where ITPR Reviewers are financially dependent upon the goodwill of the Agency), the staffing recourse process of the Agency violates the rules of natural justice.

[100]        Further, the Applicant argues that the ITPR Reviewer lacks administrative control over third party reviews. The ITPR Reviewer cannot decide what evidence to admit, and must inform the Agency, through the ODM, of the progress of a case. These administrative controls create a reasonable apprehension of bias in the ITPR Reviewer.

2) Other violations of natural justice: the right to be heard

[101]        The principles of natural justice require that individuals know the case to be met against them (through disclosure of all relevant material) and have a reasonable opportunity to respond.

Chong v. Canada (Treasury Board) (1999), 170 D.L.R. (4^th) 641 (Fed. C.A.)

Barton v. Canada (Attorney General) (1993), 66 F.T.R. 54 (T.D.)

Wiebe v. Canada, [1992] 2 F.C. 592 (C.A.) At 595

Cardinal v. Kent Institution, [1985] 2 S.C.R. 643

[102]        The Applicant argues that, at the Individual Feedback and Decision Review stages, there is no mechanism for an affected employee to compel disclosure of relevant information. Even at the ITPR stage, relevant personal information regarding the assessment of other employees is available to the complainant only if approved by an Agency official. There is no mechanism to allow the ITPR Reviewer to assess the propriety of a decision by the Agency to refuse disclosure of relevant information concerning other employees.

[103]        During Decision Review, the supervisor may request internal subject matter experts to provide policy or procedure-related interpretations. The complainant is not provided with an opportunity to access the supplemental information gathered by the supervisor, nor is he or she entitled to respond.

[104]        The Applicant suggests that the absence of adequate disclosure at all three stages of recourse is a violation of the rules of natural justice. Further, the inability of the complainant to respond to information gathered by the decision-maker also violates the rules of natural justice.

[105]        Finally, on this issue, the Applicant points out that Ms. Christine Coffey, in her affidavit on behalf of the Respondent, relies upon the Privacy Act to justify the refusal to disclose information about other candidates. However, this Court has concluded in the past that the Privacy Act cannot limit access to information that an individual is entitled to under the rules of natural justice. Therefore, the Privacy Act is not a tenable reason to refuse disclosure.

H. v. R., [1986] 2 F.C. 71 (T.D.)

[106]        As far as the Applicant's arguments on this point regarding Individual Feedback are concerned, these matters have already been reviewed extensively by Dawson J. in Anderson v. Canada (Customs and Revenue Agency), [2003] F.C.J. No. 924, p. 1. After a lengthy analysis of the Individual Feedback process, Dawson J. concluded as follows:

45. Considering the statutory, institutional and social context in which a decision is to be made concerning an applicant's complaint about a decision that he or she does not have the pre-requisite qualifications for a position, and balancing the above factors I have not been satisfied that procedural fairness requires a need for review by an independent third party. Put positively, I find that the recourse available by way of Individual Feedback is consistent with, and meets, the requirements of procedural fairness.

46. Procedural fairness requires a meaningful opportunity to present relevant facts and to have one's position fully and fairly considered by the decision-maker. As noted by Madam Justice L'Heureux-Dubé in Baker, supra, at page 837, the purpose of the participatory rights contained within the duty of fairness "is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker".

47. The recourse provided by Individual Feedback requires that an employee have meaningful information regarding his or her assessment. An employee is well aware from the Notice of Job Opportunity and the statement of staffing requirements as to what the pre-requisites are for a position. Similarly, an employee is well aware of his or her ability to meet those pre-requisites. It has not been shown that an employee requires representation to explain where an assessment of qualification fell into error, or how an employee has established that he or she possesses the pre-requisites. Prior to the Individual Feedback session, an employee is free to obtain information from any source to help explain or make their case at the Individual Feedback session. This provides a fair opportunity for an employee to present his or her case.

48. Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. It is not, in my view, axiomatic that a person responsible for a selection board will by virtue of that position not be inclined to change the decision of the selection board if shown that an error was made. As a matter of law, in the absence of statutory restriction, non-adjudicative decisions may be reconsidered and varied. (See: Brown & Evans, Judicial Review of Administrative Action in Canada, looseleaf (Canvasback Publishing: Toronto, 1998) at 12:6100.) Given the apparent absence of any pecuniary or material interest on the part of the manager providing Individual Feedback in the matter under review, and the nature of the decision under review, it seems to me that a less demanding standard of impartiality is required than that applied to decisions of a judicial nature. The evidence does not establish that the persons providing Individual Feedback will by virtue of that fact alone have an impermissibly closed mind.

49. It is to be noted that there is a public interest in expeditious decision-making. The manager who conducts the Individual Feedback is well placed to explain fully, accurately, and expeditiously the rationale for screening a candidate out of the competition. This manager is also well-qualified to advise with respect to the candidate's developmental needs.

50. As for the limitation that at the Individual Feedback stage an employee cannot raise how other employees were treated, and cannot obtain assessment information regarding other candidates, the sole issue at this first stage of the selection process is a review of the applicant's qualifications against the pre-requisites for the position. The decision made is objective in nature, in the sense that an individual either meets the pre-requisites or does not. How others are judged is not relevant to the objective question of whether a particular individual possesses the pre-requisites. The duty of fairness does not, therefore, require access to information that is irrelevant at this stage of the selection process.

51. To reiterate, I conclude that the recourse available by way of Individual Feedback to a person found not to possess the pre-requisites for a position is consistent with requirements of procedural fairness.

[107]        I see no reason to deviate from the analysis and conclusions of Dawson J. on this issue.

[108]        As regards the Decision Review aspect of the Program, similar conclusions can be drawn regarding the issues of independence, reasonable apprehension of bias and representation as to those already drawn in relation to Individual Feedback. But the Applicant raises two further points that require consideration.

[109]        First of all, the Applicants says that, at the Decision Review stage, the reviewing manager can call for expert information on staffing and human resource matters that the employee has no right to see. Hence, in such a situation the employee would not know the case that she or he had to meet and this is procedurally unfair. Not only would the employee not see the expert information, but the employee has no right to call witnesses or present evidence.

[110]        In addition, the Applicant says that, because the policy behind the Program does not allow an employee to access the assessments of other candidates, a dissatisfied employee has no way of challenging a Decision Review conclusion or of establishing "arbitrary" treatment.

[111]        The Respondent takes the position that, on this issue as on the Applicant's attack on the Program in general, the Applicant is being speculative and premature. The Respondent points out that the Program does not forbid the Applicant access to expert or other information. Whenever relevant, the reviewing supervisor can provide the employee with reports and other information and invite comments from the employee. Also, there is no prohibition against the employee calling witnesses or other evidence to assist his or her case. Any employee who wishes to adduce such evidence merely has to ask permission to do so and this request will be considered in the usual way and in accordance with the relevance, fairness and other factors that arise in each case.

[112]        As regards input from an employee representative at the Decision Review stage, the Respondent points out that there is no prohibition in the Program that prevents a representative from speaking on behalf of an employee at the Decision Review stage. Once again, this should be left to the reviewing supervisor to deal with on a case by case basis and, if an employee feels aggrieved by an individual decision, it can be reviewed by this Court.

[113]        My review of the "Decision Review Process" in the Staffing Program Directives on Recourse for Staffing suggests that the Respondent is correct and that there are no specific prohibitions that prevent access to information and representation in appropriate cases. In fact, the supervisory reviewer is given considerable discretion to meet the needs of each specific occasion. The reviewer has the "discretion as to how to proceed with the review." The reviewer must ensure "that the review is conducted in an impartial manner and that the Authorized Person and the employee exercising recourse have the opportunity to present their views." The reviewer is mandated to "conduct the review and gather such information as is required in order to come to a decision."

[114]        There is, correspondingly, no prohibition against sharing information, representation, and appropriate procedural safeguards except in one specific respect. The Directive on Recourse says that "Personal information regarding other candidates or employees may not be disclosed." In my opinion, this prohibition does not impair the Program in the ways suggested by the Applicant.

[115]        The Directives on Recourse have general provisions dealing with disclosure of information. Article 4 reads as follows:

Recourse for the Staffing Program is subject to the Access to Information Act and the Privacy Act.

For Individual Feedback and Decision Review, Authorized Persons may not divulge personal information of other employees without that employee's express written permission.

Information regarding the assessment or treatment of another candidate in the selection process is considered to be personal information and may not be disclosed.

Authorized persons shall disclose all information relevant to the employee who is exercising recourse, except any information that could compromise national security, compromise the integrity of any standardized assessment method, or any information that would contravene the Privacy Act.

[116]        Noteworthy here is the mandatory requirement that Authorized Persons "shall disclose all information to the employee who is exercising recourse," except for the specified exceptions.

[117]        The crucial issue here from the Applicant's perspective is the prohibition against disclosing information "regarding the assessment or treatment of another candidate in the selection process .... ." My reading of these several directives is that such information is regarded as personal and cannot be divulged "without that employee's express written permission."

[118]        The Applicant argues that this prohibition will prevent an employee seeking recourse from establishing that he or she has been treated in an arbitrary way in accordance with the definition of "arbitrary." It will also, says the Applicant, undermine the principle of merit that has been central to staffing within the public service.

[119]        The Program reiterates that ranking is not part of the scheme. Under "Assessment," for instance, we are told that Assessment "is a comparison of a candidate's competencies/qualifications against established assessment criteria, not a comparison amongst candidates (not ranking)." Under "Placement" we are told that Placement "is a comparison of a candidate against specified placement criteria and is not a ranking of individuals."

[120]        When it comes to Placement, the Program makes it clear that "individuals considered for placement will be informed of how the placement criteria were applied in the placement decision," and goes on to provide that "individuals must be informed, in writing, of the results of the placement stage; this would include the name of the persons(s) selected for placement and the criteria used."

[121]        With this information, the employee with a complaint can invoke the recourse procedures. Because the Program emphasizes competence and qualifications against established assessment criteria, as opposed to a comparison between candidates and ranking, personal information concerning other candidates is not relevant to an employee's understanding of how any particular Placement decision is made. However, the criteria used in the Placement process, and the name of the person actually selected, must be disclosed in writing. When it comes to establishing arbitrariness in the Selection Process, because ranking is not part of the evaluation and appointment methodology, it appears to me that an employee will not be entitled to claim arbitrary treatment vis-a-vis another candidate, but will only be able to argue that, taking into account the established assessment criteria for Review, Assessment or Placement, she or he was treated in an arbitrary manner. Assuming multiple candidates for a Review, Assessment or Placement, all of whom fulfil the established assessment criteria, the disappointed applicants will not be able or required to argue that they have been treated in an arbitrary manner because they should have been ranked ahead of the chosen candidate.

[122]        So, from the perspective of participating in the Program as it is described in the directives and exercising recourse, an employee does not need the personal information of other candidates. Hence, it can hardly be unreasonable for the Program to exclude that information from "all information relevant to the employee who is exercising recourse."

[123]        I note, however, that in Sargeant v. Canada (Customs and Revenue Agency), [2002] F.C.J. No. 1372, which is one of only two individual applications for judicial review of aspects of the Agency's recourse mechanism heard by this Court at the time of the hearing, in response to an ITPR Reviewer's decision that a summary of scores for all candidates was relevant to the question of whether management selected the five candidates who placed highest overall in an assessment, the Agency agreed to provide the applicants with a copy of the summary. So excluding personal information does not preclude a comparison of test scores as part of a consideration of arbitrariness. In the absence of a specific decision and a specific set of facts, it is difficult to substantiate the Applicant's arguments on these issues.

[124]        But I do not believe that this is the Applicant's real concern. In my opinion, the Applicant wishes to argue that the Agency's recourse system is inherently arbitrary, unreasonable and contrary to Parliament's intent under 54(1) of the CCRAA because it excludes ranking from the Selection Process. And this, in my opinion, is not a question this Court is equipped to answer based upon the evidence before me in this Application. In the final analysis, this issue becomes one of statutory interpretation and Parliamentary intent.

[125]        In essence, the Applicant's argument is, in my opinion, that a placement system that excludes ranking is, per se, contrary to rules of natural justice and procedural fairness and, therefore, cannot accord with Parliamentary intent. But apart from a few inconclusive references to Hansard (a dubious guide to Parliamentary intent at best) the Applicant provides the Court with no real evidence or argument on this issue. In fact, the Applicant's Memorandum of Fact and Law and oral presentation do not, in my opinion, confront this issue head on. The Court is merely asked to assume that Parliament, under s. 54(1) of the CCRAA could not have intended a recourse system that was unreasonable and contrary to the rules of procedural fairness and natural justice (a proposition with which I agree) and that a recourse system that avoids ranking in the Review, Assessment and Placement process is, per se, unreasonable, contrary to the rules of procedural fairness and natural justice and, therefore, contrary to Parliamentary intent (a proposition with which I cannot concur on the basis of the evidence and arguments that the Applicant has brought to the Court in this Application). The Court cannot decide this matter in the abstract. Ranking and merit are PSEA principles and, as Dawson J. held in Anderson, supra, "nothing in the [CCRAA] states that PSEA principles are to be preferred or applied to the CCRA."

[126]        As regards the ITPR process, the Applicant once again argues that the necessary degree of independence is missing and this gives rise to a reasonable apprehension of bias. In this regard the Applicant relies heavily on the judgment of Lamer C.J. in the Supreme Court of Canada decision of Canadian Pacific Ltd., supra, and, in particular, the following paragraphs:

80. I agree and conclude that it is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent. Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension. Moreover, the principles for judicial independence outlined in Valente are applicable in the case of an administrative tribunal, where the tribunal is functioning as an adjudicative body settling disputes and determining the rights of parties. However, I recognize that a strict application of these principles is not always warranted. In Valente, supra, Le Dain J. wrote, at pp. 692-93,

It would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. . . .The essential conditions of judicial independence for purposes of s. 11(d) must bear some reasonable relationship to that variety.

I reached a similar conclusion in Généreux, supra, at pp. 284-85.

81. The classic test for a reasonable apprehension of bias is that stated by de Grandpré J. in Committee for Justice and [1978] 1 S.C.R. 369">Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:

De GrandpréJ. further held that the grounds for the apprehension must be "substantial".

82. The decision in Committee for Justice and [1978] 1 S.C.R. 369">Liberty confirms, at p. 395, that a more flexible approach should be taken in applying the test for bias in the context of administrative tribunals:

The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in light of its experience and of that of its technical advisers.

The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice, 1971, at p. 220:

. . .'tribunals' is a basket word embracing many kinds and sorts. It is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias in another.

To the same effect, the words of Tucker L.J. in Russell v. Duke of Norfolk and others, [1949] 1 All E.R. 109, at p. 118:

There are, in my view, no words which are of a universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.

In the case at bar, the test must take into consideration the broad functions entrusted by law to the Board. . . .

83.    Therefore, while administrative tribunals are subject to the Valente principles, the test for institutional independence must be applied in light of the functions being performed by the particular tribunal at issue. The requisite level of institutional independence (i.e., security of tenure, financial security and administrative control) will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office.

84. In some cases, a high level of independence will be required. For example, where the decisions of a tribunal affect the security of the person of a party (such as the Immigration Adjudicators in Mohammad, supra), a more strict application of the Valente principles may be warranted. In this case, we are dealing with an administrative tribunal adjudicating disputes relating to the assessment of property taxes. In my view, this is a case where a more flexible approach is clearly warranted.

85. I would therefore apply this approach to the question of whether the members of the appellants' appeal tribunals are sufficiently independent. The Valente principles must be considered in light of the nature of the appeal tribunals themselves, the interests at stake, and other indices of independence, in order to determine whether a reasonable and right-minded person, viewing the whole procedure as set out in the assessment by-laws, would have a reasonable apprehension of bias on the basis that the members of the appeal tribunals are not independent.

[127]        The Respondent takes the position that the three essential components of judicial independence - security of tenure, financial security and administrative independence - have no application to the work of ITPR Reviewers.

R. v. Valente, [1985] 2 S.C.R. 673

[128]        In Valente, supra, the issue was whether a provincial court judge conducting a criminal trial was an independent tribunal within the meaning of paragraph 11(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada reached the following conclusion about the meaning of "independent" in that context at page 685:

The word "independent" in s. Il(d) reflects or embodies the traditional constitutional value of judicial independence. As such it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees. (emphasis added)

[129]        The Respondent points out that the case at bar is not concerned with the criminal law, with Charter rights, or with the independence of courts and judges. An ITPR Reviewer is not a judge but an administrative decision-maker. The courts apply a more flexible approach to the independence of administrative tribunals than that employed in Valente, supra. To support this position, the Respondent refers the Court to the following cases:

Canadian Pacific, supra

Katz v. Vancouver Stock Exchange, [1996] 3 S.C.R. 405, following 128 D.L.R. (4^th) 424 (B.C.C.A.)

Bell Canada v. Canada (Human Rights Commission), 2001 FCA 161, [2001] F.C.J. No. 776

Ocean Port Hotel Ltd., supra, No. 17 at para. 32

[130]        The Respondent argues that, absent constitutional constraints, the degree of independence required of a particular government decision-maker or tribunal is determined by its enabling statute. It is Parliament that determines the degree of independence required of tribunal members. The statute must be construed as a whole to determine the degree of independence the legislature intended.

[131]        Where a statute is silent or ambiguous as to the independence of a tribunal, the courts generally infer that Parliament intended the tribunal's process to comply with principles of fairness and natural justice. The precise standard of independence will depend upon all of the circumstances, including the language of the statute under which the tribunal acts, the nature of the task it performs, the type of decision it is required to make and the operational context.

[132]        The CCRAA confers considerable discretion on the Agency to determine the form and content of the staffing program it must develop. The CCRAA does not require the Agency, expressly or by implication, to establish recourse from staffing decisions that includes formal court-like adjudicative bodies that meet the components of judicial independence.

[133]        Given this broad delegation of authority from Parliament, the Respondent takes the position that it was open to the Agency to establish an internal mechanism for the resolution of staffing disputes commensurate with the nature of the decision at issue. The Agency might reasonably have decided that employees should be required to seek recourse exclusively from supervisors and senior management. Instead, the Agency decided that employees challenging placement decisions could seek recourse internally, by way of Decision Review, or externally, by way of ITPR outside the Agency. That third party recourse need not be a court or formal tribunal.

[134]        The Respondent concludes that, in carrying out its duty to develop the Program, the Agency has not ousted the principles of fairness and natural justice. The guidelines for ITPR specifically provide that the ITPR Reviewer shall provide both parties with a full opportunity to present their case, with the assistance of representatives, in accordance with the principles of procedural fairness.

[135]        In the alternative, the Respondent says that the principles of fairness and natural justice do not require that these principles apply to ITPR Reviewers in the same way that they might apply to courts or formal boards. Put differently, ITPR Reviewers are sufficiently independent, given the context within which they work and the nature of their decisions.

[136]        The Respondent points out that there is no evidence of any promises, practices or procedures by the Agency that might support a legitimate expectation that the components of judicial independence might apply to ITPR Reviewers.

[137]        There is no prospect of interference by the Agency in the work of an ITPR Reviewers, who are engaged by contract to perform services in respect of a particular challenge. There is no evidence to suggest that the Agency has in this case or might in future cases rescind that contract before the ITPR Reviewer's work is finished. In the absence of any such evidence, the Agency is entitled to rely on the presumption of regularity of the administrative process.

Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221 at para. 55

[138]        Similarly, the Respondent argues that financial security is not an issue. The Agency does not employ the ITPR Reviewer and does not pay the ITPR Reviewer a salary. Payment is guaranteed by a contract for services. The right to be paid proper accounts for services rendered must be presumed as a matter of law.

Katz, supra, at 439 (B.C.C.A.)

[139]        Finally, the Respondent points out that ITPR Reviewers are entirely independent of the Agency. They are not managers or supervisors of the employees seeking recourse. They do not perform other services for the Agency. In particular, they are not involved in the formulation of staffing policy. For these reasons, they are disinterested and impartial decision-­makers capable of bringing an objective eye to the dispute before them. They render decisions that are binding on the Agency and the Agency must take corrective measures in accordance with those decisions.

[140]        Given these characteristics, the Respondent argues the practice and procedure surrounding ITPR meets the minimal independence requirements applicable to an informal administrative decision-maker. No reasonable apprehension of bias arises on the facts of this case.

[141]        Once again, in assessing these matters, the Court is hampered by the lack of an actual decision and a set of facts against which the rules of fairness and natural justice can be tested. The Court is being invited by the Applicant to speculate about possible consequences of the way the recourse system under the Program has been structured. In my view, this is not sufficient for a reviewing Court called upon to make the kind of declaration that the Applicant seeks in this case. There is no real evidentiary basis for the Court to conclude that the ITPR process is not adequate to deliver the kind of independent, impartial and fair decisions that the law demands of a decision-maker in the position of an ITPR Reviewer. We will have to await actual decisions before these matters can be ascertained with the degree of proof required to formulate conclusions about procedural fairness.

(ii) Impartiality

[142]        On this issue, the Respondent argues that impartiality refers to a state of mind or attitude of a tribunal in relation to the issues and the parties in a particular case. The word "impartial" connotes absence of bias, actual or perceived. The test for institutional impartiality is the same as the test for institutional independence: is there a reasonable apprehension of bias?

Valente,supra.

[143]        For the reasons discussed above, the Court agrees with the Respondent that no reasonable apprehension of partiality arises on the evidence that has been presented to the Court in this case. The Reviewer is independent of the Agency, disinterested as between the parties and capable of forming an opinion on the basis of the evidence and arguments advanced before him or her. ITPR Reviewers do not perform other functions for the Agency, especially those of an inquisitorial or prosecutorial nature. Accordingly, there can be no reasonable concern for multiple conflicting functions.

[144]        The Court also concurs with the Respondent that, given the context and the role of ITPR in the recourse system, there is sufficient independence to remove any reasonable apprehension of bias or violation of the rules of procedural fairness and national justice.

[145]        In conclusion on this issue, and applying a reasonableness standard, in the absence of a particular decision, I am not convinced that the staffing recourse mechanism, per se, violates the rules of natural justice and procedural fairness on the basis of the arguments and evidence relied upon by the Applicant.

Is the Agency's staffing recourse mechanism unreasonable because it does not allow the decision maker to address all relevant considerations?

[146]        The arguments advanced by the Applicant on this issue overlap with the previous issue and the subsequent ground of complaint. Relevance is governed by the definition of "arbitrary" contained in the Program Directives and the policy decision to exclude "ranking" from Review of Prerequisites, Assessment and Placement. In so far as the Applicant is concerned that the exclusion of "Personal Information" necessarily means the exclusion of all comparative information, the Sargeant v. Canada (Customs and Revenue Agency), [2002] F.C.J. No. 1372, 2002 FCT 1043 (F.C.T.D.) (Q.L) decision makes it clear that this is not necessarily the case. The Agency, in that situation, made a summary of candidates' scores on an assessment available to the applicant and Dawson J. had the following to say on this point:

38. While the staffing program under the Act is markedly different from that before the Court in Buttar, I do take assistance from the decision to the extent it reflects that even in a system where candidates are assessed against a standard and not one another, it is relevant to consider whether standards were consistently applied. While in Buttar the relevant principle was the merit principle, in the present case inconsistent application of the assessment criteria would result in a decision which would be arbitrary within the definition previously set out. To that extent the Buttar decision is therefore helpful.

39. Further support for this conclusion is found in those portions of the Guidelines which require the Reviewer to give expression to the principles of procedural fairness and which note that personal information regarding other employees would be available as warranted. Procedural fairness requires that participants have a meaningful opportunity to present their case fully and fairly. A full and fair presentation of the applicants' case would require access to information from the assessment stage as that relates to the assessment scores given to each candidate.

[147]        This suggests to me that it is speculative and too early to conclude, as the Applicant does, that meaningful and relevant comparative material is not available under the Program. I am not convinced that the recourse mechanism is unreasonable because it does not allow the decision maker to address all relevant considerations. At the Prerequisite and Assessment stages, as Anderson, supra, reveals, the nature of the decision being made suggests that how others have been judged may have little relevance for the objective question of whether a particular individual possesses the prerequisites or whether a candidate's prerequisites meet the qualifications for a particular position. At the Placement stage, the Court cannot say on the material before it in this Application that relevant comparative material will not be available on any particular set of facts. It just is not possible to say that the recourse mechanism is unreasonable on this ground. In addition, looking at the directives on other materials that a decision maker might refer to, it is not possible to say that a particular complainant will not be given the opportunity to address them. I cannot conclude that the recourse mechanism is unreasonable on this ground.

Is the Agency's staffing recourse mechanism unreasonable because it does not allow an examination of whether candidates are treated consistently?

[148]        At the individual Feedback and Decision Review stages, information regarding the assessment or treatment of another candidate in the Selection Process may not be divulged to the complainant. Further, complainants may not allege that they have been assessed inconsistently compared to other candidates. Instead, complainants are required to focus on their own treatment without regard to the treatment of other candidates.

[149]        The Applicant argues that at the ITPR stage, information regarding the assessment or treatment of another candidate in the selection process is available only if an Agency official approves.

[150]        The Applicant submits that the Agency's staffing recourse mechanism is unreasonable because it forecloses examination on a crucial issue: whether the complainant was treated inconsistently compared to other candidates.

[151]        The Applicant argues that this refusal to consider information about other candidates is unreasonable in light of the definition of "arbitrary" used by the Agency. At each stage, the only question is whether the complainant was treated in an "arbitrary" manner. The definition of "arbitrary" includes "discriminatory (i.e. difference of treatment or denial of normal privileges to persons because of their race, age, sex, nationality, religion or union affiliation)." It is unreasonable, argues the Applicant, to expect complainants to argue that they were treated in a discriminatory manner, yet prevent them from raising evidence concerning the treatment of other candidates at the Pre-requisite or Assessment stages of the Selection Process.

[152]        Further, the Applicant argues that this refusal to consider information about other candidates violates s. 56 of the CCRAA. Section 56 reads as follows:

[153]        The Applicant submits that s. 56 of the CCRAA has two consequences. First, ss. 56(2) means that the principles governing the Agency's Program must be compatible with the principles of the PSEA. Second, ss. 56(1) means that the Agency's staffing recourse mechanism must be consistent with the Agency's staffing principles.

[154]        The staffing principles of the Agency include the following:

Competency:          The workforce possesses the attributes required for effective job performance.

Fairness:                 Staffing decisions are equitable, just and objective.

Transparency:        Communications about staffing are open, honest, respectful, timely and clearly understood.

[155]        The Applicant asserts that s. 56(2) of the CCRAA requires that these broad principles must be interpreted in such a way as to make them consistent with the principles of the PSEA.

[156]        The cornerstone of appointments to and within the Public Service is the merit principle. Under the PSEA, the fundamental principle is that appointments must be based on selection according to merit. As this Court has stated in Public Service Alliance of Canada v. Canada (Public Service), [1992] 2 F.C. 181 (T.D.) at 185:

Historically, the merit principle lies at the heart of the Public Service Employment Act. The Commission is responsible for staffing the federal Public Service and, in exercising this function, it acts as Parliament's agent in ensuring that the merit principle is upheld.

[157]        In a job selection procedure, a failure to assess all candidates according to the same standards is a violation of the merit principle.

Buttar v. Canada (Attorney General), [2000] F.C.J. No. 437.

[158]        Therefore, argues the Applicant, the Agency staffing principles should also reflect this same principle: all candidates must be assessed according to the same standards. If candidates are not assessed according to the same standards, then this violates the three Agency principles listed above. It violates the principle of competency because there is no guarantee that the workforce will possess the necessary attributes if some candidates are assessed according to a different standard from the rest. Treating different candidates differently also violates the principle of fairness because the decision will be neither equitable nor objective. Finally, hiding details about how other candidates were assessed violates the principle of transparency because the staffing decision is not open.

[159]        Section 56 of the CCRAA requires the Agency to establish a staffing recourse mechanism that guarantees that all candidates are assessed against the same standard. The staffing recourse mechanism currently in place violates that principle. Therefore, argues the Applicant, it is unreasonable and not a true method of "recourse" as contemplated by s. 54 of the CCRAA.

[160]        This Court has confirmed the importance of ensuring candidates are assessed against the same standards in Sargeant, supra. In that case, the ITPR Reviewer refused to consider the assessment scores given to candidates other than the complainants. This Court said that such a decision substantially deprived the complainants of access to effective recourse.

[161]        Therefore, the Applicant submits that the Agency acted unreasonably in designing a recourse mechanism that prohibits consideration of whether the standards for any job are applied evenly among all candidates.

[162]        Once again, I have already addressed some of these arguments when dealing with previous issues raised by the Applicant. Sargeant, supra, has already made clear that a system based upon established assessment criteria rather than ranking does not preclude an examination of whether standards were consistently applied when determining whether a decision is arbitrary, at least as far as ITPR is concerned. And that case also shows that any ITPR Reviewer who concludes that documents relating to the assessment of other employees are not relevant and should be left out of accounts is wrong. The Agency itself appears to have acknowledged as much by making the score summaries available to the applicant in that case.

[163]        The Applicant is concerned, however, that comparative material will not be available at the Pre-requisite and Assessment stages of the selection process. And Dawson J. in Sargeant, supra, has already concluded that inconsistent application of assessment criteria could result in a decision that is arbitrary within the meaning of the definition. But Dawson J. has also ruled in Anderson, supra, that "the recourse available by way of Individual Feedback is consistent with, and meets, the requirements of procedural fairness," and specifically addressed the Applicant's arguments on consistent treatment of candidates at para. 50 of her decision as follows:

50. As for the limitation that at the Individual Feedback stage an employee cannot raise how other employees were treated, and cannot obtain assessment information regarding other candidates, the sole issue at this first stage of the selection process is a review of the applicant's qualifications against the pre-requisites for the position. The decision made is objective in nature, in the sense that an individual either meets the pre-requisites or does not. How others are judged is not relevant to the objective question of whether a particular individual possesses the pre-requisites. The duty of fairness does not, therefore, require access to information that is irrelevant at this stage of the selection process.

[164]        In my view, the rationale presented here by Dawson J. in relation to the Individual Feedback stage is equally applicable to the Decision Review stage.

[165]        Hence, in my opinion, and applying a reasonableness standard, I am not convinced on the basis of the arguments and evidence adduced by the Applicant in this Application that the Program is unreasonable on this ground.

[166]        The Applicant's argument concerning s. 56(2) of the CCRAA has already been considered and answered by Dawson J. in Anderson, supra, where she concluded at para. 25 that "the recourse available to employees under the [CCRAA] need not conform with, or be modelled upon, the recourse available under the PSEA," and at para. 29 as follows:

It is important to note that what is to be reviewed are staffing principles, not actual program provisions. Further, such comparison contemplates that there may be differences between the principles, and nothing in the legislation states that PSEA principles are to be preferred or applied to the CCRA.

[167]        Notwithstanding the foregoing, it is worth pointing out that the Public Service Commission of Canada has examined compatibility issues under the Program and concluded, in a letter of July 10, 2000, that "those principles currently expressed in the Agency's staffing program, also strongly affected in the business plan, appear compatible with those governing staffing under the PSEA." There is nothing before the Court in this Application to suggest that the Commission does not remain satisfied on this score.

[168]        While I accept the Applicant's argument that the Agency recourse mechanism must be consistent with the Agency staffing principles, if PSEA principles are left out of account as previously discussed, then the Applicant's argument is little more than an assertion that all candidates must be assessed against the same standards if the recourse mechanism is to comply with Agency principles. I concur with the Applicant that Sargeant, supra, teaches that the definition of "arbitrary" may require certain comparisons to be made to ensure consistency, at least at the Placement stage. But there is no real evidence before me to suggest that recourse under the Program is not consistent with staffing principles. Once again, the Applicant is merely being speculative and individual decisions are required before this issue can be truly reviewed.

[169]        Consequently, I hold on this ground, applying a reasonableness standard, that, on the basis of the evidence before me in this Application, the Program is not unreasonable because it does not allow an examination of whether candidates are treated consistently.

Is the Agency's staffing recourse mechanism unreasonable because of an absence of sufficient remedial power?

[170]        The Applicant's arguments on this issue are aimed at the ITPR Reviewer. The Applicant says that the range of corrective measures available to ITPR Reviewers on staffing issues is limited to three options:

a.         order correction of error in process;

b.         recommend revocation of appointed employee; and

c.         recommend involving another manager in the decision.

[171]        The Applicant submits that, without the power to order the revocation of the appointed employee and the involvement of another manager in the decision, ITPR is not a true avenue of "recourse" for Agency employees. The ability to order a correction of any errors in the process is an empty remedy if the position remains filled by the candidate who won the competition.

[172]        To determine whether the remedies available are sufficient to constitute true "recourse", the Applicant submits that this Court should apply a test similar to that used to determine whether the Court should exercise its discretion to refuse to hear an application for judicial review. In short, this Court must be convinced that the recourse mechanism constitutes an "adequate alternative remedy" to judicial review.

Matsqui Indian Band, supra, at para. 38

[173]        In [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at 588, the Supreme Court of Canada set out a number of factors that must be taken into consideration to determine whether an administrative avenue for recourse constitutes an adequate alternative remedy to judicial review. These factors include the "powers" of the tribunal.

[174]        The Federal Court of Appeal in Canada (Employment and Immigration Commission) v. Lewis, [1986] 1 F.C. 70 (C.A.) had to assess whether the adjudicator system in the Public Service Staff Relations Act was an adequate alternative remedy because, inter alia, an adjudicator has the power to oblige an employer to take corrective action. The Court stated at pages 98-99 as follows:

Significantly, subsection 96(4) of the Act obliges an employer to take the action required by the decision of an adjudicator. Thus, it seems to me, the employer in this case could have been required by an adjudicator to reinstate the respondent if he considered that to be appropriate in the circumstances. Intervention of the Board itself to enforce compliance with a decision of an adjudicator is provided for in subsection 96(6) of the Act.

In light of these provisions, it is difficult for me to conclude that an adequate alternative remedy was not available to the respondent under subsection 91(1) of the Act ... [because of factors] including the possibility of being absolved of misconduct and of being restored to his former position ...

[175]        Where an ITPR Reviewer concludes that a candidate has been treated arbitrarily, he or she cannot order the Agency to revoke the appointment of the successful candidate and reassess the candidates in a non-arbitrary manner. Further, even if the ITPR Reviewer makes an order that an error "in the process" be corrected, there are no provisions allowing the ITPR Reviewer or the complainant to enforce the order; nor does the Agency staffing policy include any positive obligation on the Agency to follow the order of the ITPR Reviewer. In other words, the Applicant says there are no penalties for a refusal to follow the order of an ITPR Reviewer.

[176]        In short, the Applicant argues that ITPR is not an adequate alternative remedy to judicial review of a decision not to appoint a candidate to a position in the Agency. The Applicant submits that a reasonable avenue of "recourse" would constitute an adequate alternative remedy as this Court has interpreted that term; in failing to provide adequate remedial authority, the recourse mechanism implemented by the Agency is unreasonable.

[177]        I disagree with the Applicant that the issue here is whether the Program provides an "adequate alternative remedy" to judicial review. There is no application before the Court which raises that issue and the comparison is not apt, even by way of analogy.

[178]        The remedies available to the ITPR Reviewer are consistent with and adequate to the stated objectives of recourse under the Program. Recourse under the Program is not intended to exclude judicial review and the adequacy or inadequacy of remedies is mere speculation at this time without actual facts and decisions for the Court to consider.

[179]        It cannot be said on the evidence before this Court that the Program and the recourse mechanism are unreasonable because they lack sufficient remedial power. That will have to await specific instances and specific responses to ITPR orders and recommendations.

Conclusions

[180]        This application for judicial review is ill-founded, speculative and premature and does not present a decision, order or other matter intended for review in accordance with s. 18.1 of the Federal Court Act.

[181]        In the event that this application does present a decision, order or other matter for review within the meaning of s. 18.1 of the Federal Court Act, there are no grounds before the Court to justify a declaration that the Canada Customs and Revenue Agency has failed to develop a program for staffing recourse as required by s. 54 of the Canada Customs and Revenue Act.

ORDER

THIS COURT ORDERS that

1.         The Application is dismissed.

2.         The Applicant shall pay to the Respondent its costs, to be assessed in accordance with column III of the table to Tariff B. of the Federal Court Rules, 1998.

    "James Russell"

JFC

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                               T-598-00

STYLE OF CAUSE: Professional Institute of The Public Service of Canada

and Canada Customs and Revenue Agency

and Public Service Alliance of Canada

PLACE OF HEARING:         Ottawa, Ontario

DATE OF HEARING:           Tuesday, December 2, 2003

REASONS FOR ORDER and ORDER : The Honourable Mr. Justice Russell

DATED:          April 1, 2004

APPEARANCES:

Mr. Dougald Brown                                                FOR APPLICANT

Mr. J. Sanderson Graham                                   FOR RESPONDENT

Mr. James Cameron                                             FOR INTERVENER

SOLICITORS OF RECORD:

Nelligan O'Brien Payne LLP                                   FOR APPLICANT

Ottawa, Ontario

Raven Allen Cameron & Ballantyne                       FOR INTERVENER

Ottawa, Ontario

Mr. Morris Rosenberg                                         FOR RESPONDENT

Deputy Attorney General of Canada