Date: 20100413
Docket: T-1022-09
Citation: 2010
FC 399
Ottawa, Ontario, April 13, 2010
PRESENT: The Honourable Justice Leonard S. Mandamin
BETWEEN:
JOHN
H. MCLAUGHLIN
Applicant
and
ATTORNEY GENERAL OF CANADA,
CHANTAL MAGNY
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, John McLaughlin, applies for judicial review of the May 22, 2009
decision of the Independent Third Party Reviewer to dismiss his request for
recourse with respect to an internal staffing decision by the Canada Revenue
Agency (the CRA).
[2]
The
Applicant is a collections officer at the CRA. On October 16, 2008, following a
CRA staffing exercise, he was informed he was appointed to a permanent position
as a Collections Officer, SP-057, 2008. On November 7, 2008 the CRA decided to
cancel the appointment and re-run the selection process for the position
because of errors in the first exercise. Another candidate was appointed as a
result of the second selection process.
[3]
The
Applicant applied for recourse through the CRA’s Staffing Process and an
Independent Third Party Reviewer (the Reviewer) was appointed to hear the
Applicant’s claim. The Reviewer concluded, even though no employee had
requested recourse in the initial staffing process, that the CRA was entitled
to revoke the Applicant’s appointment in order to correct “egregious errors” in
the initial staffing process. The Applicant requests judicial review of the
Reviewer’s decision.
[4]
For
reasons that follow, I am granting the application for judicial review.
BACKGROUND
[5]
This case
asks whether the CRA acted arbitrarily by revoking the employment offer it made
to the Applicant as a result of corrective measures it initiated because of two
mistakes it made in posting the job in question here.
[6]
The
evidence shows the Applicant was offered the job. However, four days later CRA
discovered Mr. Convertini was not sent a copy of the initial call letter. Mr.
Convertini is an elegible employee who occupied the position in question in an
acting capacity. Around this same time the agency also realized it did not
specify the term of the employment as indeterminate, that is, as permanent. It
subsequently revoked the offer it made to Mr. McLaughlin and reissued its call
indicating:
“On August 1, 2008, a call letter was
sent to qualified candidates from the above-noted selection process for a
position in the Tax Services and Debt Management Division at the St. Catharines
TSO. Due to an administrative error steps are now being taken to address the
situation.”
[7]
The next
call was sent to the entire pre-qualified pool and it specified the
indeterminate term. The Applicant reapplied. Chantal Magny, who had withdrawn
her application from the first call letter because the term was not specified,
applied anew because the term was now specified. She was ultimately the
successful candidate. Mr. McLaughlin was notified of her placement and
initiated the recourse procedure.
[8]
In January
2009, the Applicant requested Independent Third Party Review of the matter. He
argued, much as he does here, that CRA failed to observe its own policies by
taking corrective measures without any requests for recourse. He contends this
course of action was arbitrary within the meaning of the expression
contemplated by the Staffing Process.
DECISION UNDER REVIEW
[9]
The
Independent Third Party Reviewer’s mandate is limited to determining whether
the CRA acted arbitrarily.
[10]
The
Reviewer summed up the question before him as: “What should the Employer have
done when it became aware of these errors and omissions?”
[11]
The
Reviewer found it was “entirely understandable that Mr. McLaughlin would have
been upset and dismayed by the Employer’s decision to restart part of the
staffing process after he had been notified the he was the successful
candidate”.
[12]
The
Reviewer found this change of course was not due to an improper motive on the
part of the Employer. Instead, he found the employer acted to correct the
failure to indicate the nature of the appointment, a failure the Reviewer
described as a “glaring omission”.
[13]
He
rejected the Applicant’s argument the appropriate procedure would have been to
wait for an aggrieved employee to seek redress. Finding instead the Employer
risked violating a general principle of fairness found in the Staffing Process.
He wrote:
I disagree that the Employer cannot be
proactive in addressing egregious and serious errors in the staffing process,
and must not do so unless and until [sic] there redress procedure is invoked.
In my view, management would have been in violation of the fairness
component of the “Staffing Principles” if it had failed to act in a timely
fashion (as it had in this instance) in the face of the errors that had
come to its attention.
…
It is clearly not in the interest of the
employees of the CRA to establish the proposition that the Employer cannot
address egregious errors unless and until the redress process has been invoked.
To uphold such a proposition would only create frustration among employees, and
may prevent the redress of staffing errors.
[14]
The Reviewer
found CRA did not act arbitrarily and dismissed the Applicant’s complaint.
RELEVANT LEGISLATION
[15]
The Canada
Revenue Agency Act, (1999, c. 17) provides:
|
53. (1) The Agency has the exclusive
right and authority to appoint any employees that it considers necessary for
the proper conduct of its business.
54. (1) The Agency must develop a
program governing staffing, including the appointment of, and recourse for,
employees.
(2) No collective agreement may deal
with matters governed by the staffing program.
|
53. (1) L’Agence a compétence exclusive
pour nommer le personnel qu’elle estime nécessaire à l’exercice de ses
activités.
54. (1) L’Agence élabore un programme
de dotation en personnel régissant notamment les nominations et les recours
offerts aux employés.
(2) Sont exclues du champ des
conventions collectives toutes les matières régies par le programme de
dotation en personnel.
|
ISSUES
[16]
In my
view, this case raises the following issues:
1. Did the ITPR err in
fact by mischaracterizing the CRA’s administrative errors?
2. Did the ITPR err in
law by misconstruing the definition of arbitrary?
3. Did the ITPR err in
fact and law by wrongly interpreting the Staffing Program?
STANDARD
OF REVIEW
[17]
The
Applicant asserts the Reviewer is engaged in the interpretation of
“quasi-legislative” directives of the CRA Staffing Program. He contends the
scope of the Staffing Program and interpretation of ‘arbitrary’ is a question
of law reviewed on a standard of correctness.
[18]
The Respondent
submits the Reviewer’s decision is a matter of mixed fact and law and fact
reviewable on a standard of reasonableness.
[19]
In my
view, the Reviewer is applying the mandated definition of “arbitrary” to the
undisputed facts in the case before him. I find his decision is reviewable on a
standard of reasonableness, as it does not require a determination with respect
to the legal meaning of “arbitrary” or interpretations of statute or common
law.
[20]
The
Supreme Court of Canada held in Dunsmuir v. New Brunswick, 2008 SCC 9 at para.
45 there are only two standards of review: correctness and reasonableness. The
standard of correctness will apply to questions of law, while questions of
mixed fact and law, and questions of fact will be reviewed on a standard of
reasonableness. It also found not every case requires a full standard of review
analysis; courts may apply the standard of review previously determined by the
jurisprudence. (Para. 57)
[21]
In Canada (Customs and Revenue Agency)
v. Kapadia,
2005 FC 1568 Mr. Justice Michael Kelen conducted a pragmatic and functional
analysis of the role of an Independent Third Party Reviewer. He found the
decision should be reviewed on a standard of reasonableness simpliciter.
That standard post-Dunsmuir is understood as reasonableness today.
[22]
The
Supreme Court found in Khosa v. Canada (Minister of Citizenship and
Immigration),
2009 SCC 12 at paragraph 59:
Reasonableness is a single
standard that takes its colour from the context. One of the objectives of Dunsmuir was to
liberate judicial review courts from what came to be seen as undue complexity
and formalism. Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within
"a range of possible, acceptable outcomes which are defensible in respect
of the facts and law" (Dunsmuir, at para.
47). There might be more than one reasonable outcome. However, as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome.
ANALYSIS
[23]
CRA is an
agency established by Canada Revenue Agency Act (CRAA) with the
exclusive right to appoint employees. Staffing is governed at the CRA by the
Staffing Program established pursuant to section 54(1) of the CRAA.
Madam Justice Eleanor Dawson found in Anderson v. Canada (Customs and Revenue Agency), 2003 FCT 667 at paras.
14-16:
“14 As noted above, the predecessor to
the CCRA was Revenue Canada. Revenue Canada was a department in the
federal public service. Its employees were appointed by the Public Service
Commission ("PSC"). Employees therefore had the right to pursue
recourse and appeal mechanisms under the Public Service Employment Act, R.S.C.
1985, c. P-33 ("PSEA").
15 The CCRA was established in 1999.
Subsection 53(1) of the Act vests in the CCRA the exclusive right and authority
to appoint its employees, and subsection 54(1) of the Act requires the CCRA to
"develop a program governing staffing, including the appointment of, and
recourse for, employees". Sections 53 and 54 of the Act are set out in
Appendix A to these reasons.
16 The CCRA did adopt a staffing program
entitled the "Canada Customs and Revenue Agency Staffing Program"
("Staffing Program"). The Staffing Program provides that the
"Selection Process" is one of the principal mechanisms used by the
CCRA for the promotion and appointment of staff. The term "Selection
Process" means the procedure whereby individuals may express interest in a
job opportunity and subsequently be considered and selected for appointment.”
[24]
The
selection process is divided into three stages: the pre-requisite stage, the
assessment stage and the placement stage. Each stage provides steps which meet
the employer’s need to assemble a competent staff and the employees’ rights to
fair access to opportunities. Annex E of the Staffing Program describes the
three stages of the selection process. Annex L describes avenues of recourse
from staffing decisions.
[25]
Redress
is engaged by candidates affected by staffing decisions. Only one ground of
review is available, but it is reasonably broad. Paragraph 4.1 of Annex L of
the Staffing Program provides:
“In all cases, the grounds for
recourse for Individual Feedback, Decision Review and Independent Third
Party Review is whether the employee exercising recourse was treated in an
arbitrary way. The focus should be on the treatment of the individual in the
process and not on the evaluation of other candidates/employees.” (emphasis
added)
[26]
Paragraph
4.2 of Annex L defines “Arbitrary” as:
“In an unreasonable manner, done
capriciously; not done or acting according to reason or judgment; not based on
rationale, on established policy; not the result of a reasoning applied to
relevant consideration; discriminatory (i.e. difference of treatment or denial
of normal privileges to persons because of their race, age, sex, religion or
union affiliation.”
[27]
Paragraph
3.3 of Annex L requires recourse to be initiated with the use of a standardized
form requesting individual feedback within 7 days of an assessment or staffing
decision.
[28]
Where
an employee initiates recourse with Individual Feedback or the other subsequent
reviews, corrective measures may be prescribed. Independent Third Party
Reviewers are limited in this respect. They may order an error in the internal
selection process or internal staffing process be corrected, but they may not
order how the correction should be made. They may recommend the revocation of
an employee’s appointment or recommend another “authorized person” be involved
in making a decision.
[29]
Corrective
measures are clearly contemplated as the outcome of a recourse procedure. They
are governed by rules requiring performance within a specific time period,
notification and recording. Paragraph 7.1 of Annex L reads:
“Authorized Persons are accountable
for taking appropriate corrective measures in a timely manner. During the
assessment, internal selection process or internal staffing action,
these corrective measures must be taken and documented within 30 calendar days
after the decision is issued, unless the operational requirements or the volume
of work that will be required to apply the corrective measures do not permit
this.”
(emphasis added)
[30]
Finally,
four broad principles are aspired to in the Staffing Process. They are,
“competency, fairness, transparency and adaptability”.
[31]
The
Respondent argues CRA took a proactive role in rectifying its own “serious and
egregious errors”. “By addressing issues as soon as they became aware of them,
rather than sitting back and waiting for an employee to invoke a redress
procedure, the CRA acted reasonably and in accordance with its Staffing
Principles.”
[32]
The
Respondent argues the CRA is entitled to take corrective measures upon becoming
aware of its errors even if recourse is never initiated. It argues it must
protect the “whole” process from being undermined by serious administrative
errors.
[33]
The
Reviewer made a series of errors. The first was mischaracterizing the nature of
the CRA’s administrative errors which in turn led to misapplying the rules of
the staffing process to his findings. Finally, he asked the wrong questions in
resolving the issue before him.
[34]
The
Reviewer overstates the significance of the initial administrative errors. He
characterizes the failure to notify John Convertini and the failure to specify
the term of employment as “egregious and serious errors” and “a glaring
omission”. Both errors should surely be avoided. However, they are contemplated
in the Staffing Program and corrective measures are available for both.
[35]
Mr.
Convertini became aware of the Applicant’s impending appointment and could have
sought recourse for not being notified of the call. He did not.
[36]
Contrary
to Ms. Magny’s assumption that the original term was unclear, paragraph 4.12-1
of Annex E of the Staffing Program provides where a term is not specified, it
is permanent. Consequently, the specification of the term of employment as
indeterminate may be preferred, but it is not essential.
[37]
The
Reviewer writes, “The question is: What should the Employer have done when it
became aware of these errors and omissions?” This is the wrong question. Paragraph
4.1 of the Annex L of the Staffing Program is concerned with whether the
employee exercising recourse was treated in an arbitrary way. “The focus should
be on the treatment of the individual in the process and not on the evaluation
of other candidates/employees”. In my view, the proper question is: Were the
Employer’s actions arbitrary with respect to the candidate seeking recourse?
[38]
The
Reviewer’s principal concern should have been with how Mr. McLaughlin was
treated and whether that treatment was arbitrary. The Reviewer limited his
understanding of arbitrary to an inquiry into whether or not the employer acted
with an improper motive. While improper motives fall into the definition of
arbitrary, the definition is not limited to motivation. Where a decision is
“not based on rationale or established policy…” it is arbitrary.
[39]
The
Reviewer found the Employer would be violating the general staffing principle
of fairness if it did not initiate its own corrective measures. He refers to
the first sentence of paragraph 7.1 of Annex L requiring authorized persons to
take appropriate corrective measures in a timely manner. He overlooks every
other mention of corrective measures which lead to the inextricable conclusion
corrective measures are remedies resulting from a recourse procedure.
[40]
The
Staffing Program recourse process provides a predictable and transparent
process for redress. The Employer’s intervention on a general principle, absent
a truly egregious error or flaw, is neither predictable nor transparent. The
doctrine of implied exception can be applied to resolve any conflict in the
interpretation of provisions in the Staffing Program. The specific measures
provided for in the Staffing Programs take precedence over general Staffing
Principle when responding to an employee’s pursuit of recourse.
CONCLUSION
[41]
The
Independent Third Party Reviewer failed to ask the appropriate question as
contemplated by the Staffing Program. He exaggerated the significance of the
administrative errors; he misconstrued the meaning of arbitrary; and he misunderstood
the operation of the Staffing Program. His decision is not reasonable since it
does not properly consider the measures available in the Staffing Program.
[42]
The
May 22, 2009 decision of the Independent Third Party Reviewer is set aside and
the matter is remitted to another Independent Third Party Reviewer for
redetermination.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review is granted.
2. The decision
of the Independent Third Party Reviewer made on May 22, 2009 is set aside and
the matter is remitted to a different Independent Third Party Reviewer for redetermination.
3. Costs are
awarded to the Applicant.
“Leonard
S. Mandamin”
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