Date: 20100714
Docket: T-1122-09
T-1222-09
Citation: 2010 FC 743
Ottawa, Ontario, July 14,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ROBIN WLOCH
Applicant
and
CANADA
REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant, Mr. Robin Wloch, applies for judicial review of two decisions by
officials at the Canada Revenue Agency (CRA). The decisions related to his
attempts to qualify for an IT specialist position in the CRA. The Applicant
commenced separate judicial reviews of these two CRA decisions which were
subsequently consolidated into this judicial review application.
[2]
The
difference between the issues arising from the impugned decisions is nuanced
and will emerge as I recite the facts of this case. For the reasons that follow
I am dismissing the applications for judicial review on both questions.
Background
[3]
The
Applicant, a CRA employee, was very interested in competing for an open CS-03
IT Specialist position. This is apparently a much sought after position and
openings are rare opportunities for promotion. One of the essential
requirements for the position is a level 2 score in an analytical thinking
exercise called a competency overview.
[4]
On
May 30th, 2008, the Applicant submitted his analytical thinking
exercise. On September 5, 2008 he received a level 1 score.
[5]
Unhappy
with the result the Applicant requested Individual Feedback, a recourse
procedure provided for in the CRA’s staffing process. In October, 2008 the CRA
designate conducting the review refused to change the assessment score. The
Applicant then applied for Decision Review which was the second and final
recourse available to him in the staffing process for this situation.
[6]
Meanwhile,
in September 2008 the definition of analytical thinking was revised and with
that revision came a change in the assessment criteria. As will be seen, this
change could have benefitted the Applicant had it been made before he wrote his
first analytical thinking exercise. However, the change came too late and the
Applicant’s only hope to compete for the job was a favourable finding in his
recourse request.
[7]
The
CRA began its selection process in December 2008. The Notice of Opportunity
provided that all candidates who met the pre-requisites by December 2, 2008
would be considered. In addition, the Notice provided that candidates seeking
recourse for test results could also apply. Having commenced an application for
recourse on his analytical thinking score and having satisfied all the other
requirements for the job, the Applicant submitted his application by the
closing date.
[8]
On
January 5, 2009 Mr. Jacques Boudreau, the Decision Reviewer, denied the
Applicant’s request for recourse on his level 1 score. On January 19, 2009 the
CRA confirmed the Decision Review was the Applicant’s final recourse available.
The Applicant then proceeded with the first application for judicial review to
this Court.
[9]
On
February 9, 2009 the CRA Selection Board advised the Applicant that he was
screened out of the CS-03 IT Specialist selection process because he had not
achieved a level 2 competency in analytical thinking and because his request
for recourse was unsuccessful. On February 13, 2009 the Applicant sought
Individual Feedback in relation to the CRA’s decision to exclude him from the
selection process. On March 30, 2009 the Selection Board refused recourse and
reiterated its position.
[10]
By
this time 180 days had elapsed since the first competency overview and the
Applicant was eligible to be retested for his analytical thinking. He
resubmitted the same exercise, word-for-word, that he had submitted nearly a
year earlier. However, this time around the Applicant achieved a level 2 score.
[11]
The
Applicant emailed the CRA on May 22, 2009 indicating he would file a grievance
against being screened out of the CS-03 IT Specialist selection process given
the inconsistent analytical thinking scores. He questioned the earlier Decision
Review on the basis of his different results. On June 17, 2009 the Applicant
advised the CRA by email that the union was considering an application for
judicial review. The Applicant did not proceed with a grievance.
[12]
The
CRA took the Applicant’s emails of May 22, 2009 and June 17, 2009 as a request
the CRA once again reconsider excluding the Applicant from the selection
process. On June 18, 2009, Ms. Andrée Thériault reaffirmed the Board’s
position, writing:
“:…The selection committee has
taken note of your situation and is prepared to review your case, if so
directed, after a grievance has been heard and a decision rendered. At this
time, you do not meet the pre-requisites of this selection process and cannot
be considered further.”
[13]
The
Applicant filed his second application for judicial review in response to this
refusal from Ms. Thériault.
Decisions Under Review
January 5, 2009 Decision Review
[14]
The
first decision under judicial review is the January 5, 2009 decision by the
Decision Reviewer, Mr. Boudreau, deciding the Applicant had not been treated
arbitrarily and refusing his request for recourse.
[15]
Mr.
Boudreau’s Decision Review of the Applicant’s level 1 competency assessment
result provided a brief description of the analytical thinking assessment and
its goals. His review describes why the answers provided by the Applicant were
scored level 1. Mr. Boudreau concluded the criteria were applied consistently
to all candidates and the Applicant was not treated arbitrarily.
June
18, 2009 Refusal to Reconsider
[16]
The
second decision under judicial review is the June 18, 2009 decision by Ms. Thériault
delivered on behalf of the CS-03 IT Specialist Selection Board refusing to
reconsider its decision to exclude the Applicant from the selection process
barring instructions stemming from a grievance.
Legislation
Federal Courts Act, (R.S.C., 1985, c. F-7)
|
18.1
(1) An application for judicial review may be made by the Attorney General of
Canada or by anyone directly affected by the matter in respect of which
relief is sought.
Time
limitation
…
(4)
The Federal Court may grant relief under subsection (3) if it is satisfied
that the federal board, commission or other tribunal
(a)
acted without jurisdiction, acted beyond its jurisdiction or refused to
exercise its jurisdiction;
(b)
failed to observe a principle of natural justice, procedural fairness or
other procedure that it was required by law to observe;
(c)
erred in law in making a decision or an order, whether or not the error
appears on the face of the record;
(d)
based its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it;
(e)
acted, or failed to act, by reason of fraud or perjured evidence; or
(f)
acted in any other way that was contrary to law..
|
18.1
(1) Une demande de contrôle judiciaire peut être présentée par le procureur
général du Canada ou par quiconque est directement touché par l’objet de la
demande.
…
(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas:
a)
a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer;
b)
n’a pas observé un principe de justice naturelle ou d’équité procédurale ou
toute autre procédure qu’il était légalement tenu de respecter;
c)
a rendu une décision ou une ordonnance entachée d’une erreur de droit, que
celle-ci soit manifeste ou non au vu du dossier;
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
e)
a agi ou omis d’agir en raison d’une fraude ou de faux témoignages;
f)
a agi de toute autre façon contraire à la loi.
|
Public Service Labour Relations Act, (2003, c. 22, s. 2)
|
208.
(1) Subject to subsections (2) to (7), an employee is entitled to present an
individual grievance if he or she feels aggrieved
(a)
by the interpretation or application, in respect of the employee, of
(i)
a provision of a statute or regulation, or of a direction or other instrument
made or issued by the employer, that deals with terms and conditions of
employment, or
(ii)
a provision of a collective agreement or an arbitral award; or
(b)
as a result of any occurrence or matter affecting his or her terms and
conditions of employment.
(2)
An employee may not present an individual grievance in respect of which an
administrative procedure for redress is provided under any Act of Parliament,
other than the Canadian Human Rights Act.
|
(1)
Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de
présenter un grief individuel lorsqu’il s’estime lésé :
a)
par l’interprétation ou l’application à son égard :
(i)
soit de toute disposition d’une loi ou d’un règlement, ou de toute directive
ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii)
soit de toute disposition d’une convention collective ou d’une décision
arbitrale;
b)
par suite de tout fait portant atteinte à ses conditions d’emploi.
(2)
Le fonctionnaire ne peut présenter de grief individuel si un recours
administratif de réparation lui est ouvert sous le régime d’une autre loi
fédérale, à l’exception de la Loi canadienne sur les droits de la personne.
|
Canada
Revenue Agency Act,
(1999, c-17)
|
30.
(1) The Agency has authority over all matters relating to
…
(d)
human resources management, including the determination of the terms and
conditions of employment of persons employed by the Agency;
…
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.
|
30.
(1) L’Agence a compétence dans les domaines suivants :
…
d)
la gestion de ses ressources humaines, notamment la détermination de ses
conditions d’emploi;
…
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.
|
CRA Recourse for Assessment and Staffing
Process
[17]
The CRA
recourse process provides in respect of Decision Review:
2. Types of Recourse
2.3 Decision
Review is an internal process conducted by a Decision Reviewer who reviews a
staffing decision that was taken by an Authorized Person or delegate.
…
4. Grounds on Recourse
4.1
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.
4.2
The term
“arbitrary” is defined as follows:
In an unreasonable manner,
done capriciously; not done or acting according to reason or judgment; not
based on rationale or established policy; not the result of a reasoning applied
to relevant considerations; discriminatory, i.e., as listed as the prohibited
grounds of discrimination in the Canadian Human Rights Act.
…
9.2 The
Decision Reviewer
9.2.6 Shall
conduct the review and gather such information as is required in order to come
to a decision. Generally, the review is comprised of the following steps:
i.
Review
documentation presented by the candidate/employee and Authorized Person or
delegate;
ii.
Gather
additional information, as required; analyse the facts; and
iii.
Make the
final decision in writing and ensure that it is recorded in the staffing file
or the employee’s competency profile.
Issues
[18]
The
issues in this combined judicial review are as follows:
1.
What are
the applicable standards of review for each of the two decisions under judicial
review?
2.
Was the
Decision Review with respect to the assessment of Applicant’s level 1
competency in analytical thinking conducted properly?
3.
Was the
exclusion decision of the CS-03 IT Specialist Selection Committee in order?
4.
What is
the remedy available to the Applicant if either or both of the decisions are
judicially reviewed?
Standard
of Review
[19]
The
Applicant argues correctness is the proper standard of review for both
decisions in this case. The Respondent submits the standard of review in both
decisions is reasonableness.
[20]
The
Supreme Court found in Dunsmuir v. New Brunswick, 2008 SCC 9
questions of fact and questions of fact and law should be reviewed on a
standard of reasonableness, while questions of law will generally be reviewed
on standard of correctness. Where standards of review for similar questions
emerge as well-settled in the jurisprudence, those standards may be used.
January 5, 2009 Decision Review
[21]
The
Applicant argues this decision raises a question of procedural fairness that
should be reviewed on the standard of correctness. I disagree; at issue is
whether the reviewer considered the appropriate factors in arriving at his
decision. The Decision Reviewer must review the facts and determine if the
action offended the directive against arbitrary treatment. I concluded in Gerus
v. Canada (Attorney
General),
2008 FC 1344 at paras. 15, 16 that the content of a Decision Review is a mixed
question of fact and law that should be reviewed on the standard of
reasonableness. The same standard should apply in this case.
June
18, 2009 Refusal to Reconsider
[22]
The
decision concerning the Applicant’s request for reconsideration by the
Selection Committee was not a Decision Review. It was a refusal to engage in
reconsideration after it was advised that the Applicant had subsequently
received a level 2 rating in the assessment of his analytical thinking.
[23]
Although
the Applicant made reference to considering a grievance in correspondence to
the Selection Board, he clearly advised that there would be no grievance and
that the union was considering a judicial review instead. The Board said it
would only reconsider its decision to exclude the Application from the
selection process if required to do so after a grievance.
[24]
The
Selection Board’s response involves an interpretation of the grievance
procedures in the Public Service Labour Relations Act and its
inter-relationship with the Canada Revenue Agency Act. The Selection
Board had to determine what the correct statutory “next step” should be which
directs the issue into a pure question of law.
[25]
The
standard of review concerning the Selection Board’s decision is a question of
law reviewed on the standard of correctness. The Board interpreted a statute
outside its area of expertise.
Analysis
[26]
The
Applicant conflates his submissions with respect to the two decisions. His
submissions are primarily directed to the second June 18, 2009 Selection
Board’s refusal to reconsider his exclusion from the selection process.
[27]
The
Applicant contends the CRA ought not to be able to rely on the initial
analytical thinking level 1 score he received to exclude him from the CS-03 IT
Specialist selection process because the CRA has not provided a reasonable
explanation for his inconsistent analytical thinking scores on identical
competency overviews. The onus, he submits, rests on the CRA.
[28]
He
states that qualifications must not only be assessed on the basis of the same
standards among all candidates but also applied consistently. Canada (Attorney
General) v. Clegg, 2008 F.C.A. 189 at para. 25. He submits this
principle of consistency should also apply to assessment and reassessment of an
employee’s qualifications.
Analysis
of the June 18, 2009 Exclusion Decision
[29]
I
will address the issues in reverse chronological order since the second issue
may be readily disposed of. I am of the view that the Selection Board erred in
concluding it would not review the Applicant’s request to reconsider his
exclusion. The Federal Court of Appeal has confirmed that “[a]s a matter of
law, in the absence of statutory restriction, non-adjudicative decisions may be
reconsidered and varied.” Anderson v. Canada, 2003 FCT 667 at para 48;
upheld 2004 FCA 126.
[30]
The
Applicant was statutorily barred from filing a grievance. He had recourse
through Individual Feedback and Decision Review with respect to the Board’s
exclusion decision pursuant to the CRA Recourse for Assessment and Staffing
Process. Subsection 208(2) of the Public Service Labour Relations Act prohibits
an employee of the CRA from filing a grievance where the employee has recourse.
This was recently confirmed by Justice Evans of the Federal Court of Appeal in Johal
v. Canada Revenue Agency, 2009 FCA 276 at paras. 30, 32, and 34 (Johal).
The Board was in error by making reconsideration contingent on a grievance.
[31]
However,
the Selection Board’s error is not determinative of this case. As Justice John
Evans stated in Johal at para. 41: “unless this error is material, it is
not necessarily dispositive of the appeal.”
[32]
For
the Applicant to succeed on his request for reconsideration on June 18, 2009,
he has to show he qualified for the selection process on December 2, 2008. His
level 2 score would need to be recognized retroactively. At this point, the
only way that can happen is if I order it on judicial review. The only way I
can order it on judicial review is if I find a reviewable error.
Analysis
of the January 5, 2009 Decision Review
[33]
As
mentioned, the Applicant asked for recourse with respect to his level 1 score
in the form of Individual Feedback. The designate responsible for Individual
Feedback refused recourse, outlining the problem in the Applicant’s exercise.
[34]
Unsatisfied
with this result, the Applicant proceeded to the next step of recourse:
Decision Review. At this stage the reviewer collects and considers
documentation presented by the employee and those involved in the score under
review, gathers other information as required and analyses the material. He can
only apply one ground for review, and that is whether the employer acted
arbitrarily pursuant to the definition of that term in the staffing process.
[35]
The
Decision Reviewer explained the shortcomings in the Applicant’s competency
overview. He refers to specific passages from the overview and provides cogent
reasons why they did not meet the criteria at the time. The Applicant has not
identified any error by the Decision Reviewer.
[36]
On
review, I find the Decision Reviewer correctly identified the ground of review
as arbitrariness, determined that the Applicant was evaluated in accordance
with valid criteria applied to all candidates, and provided a rational
explanation of level 1 score. I find the Decision Review to be reasonable.
Retroactive
Application of the Analytical Thinking Assessment
[37]
The
Applicant submits he has been treated arbitrarily by the CRA because of his
different analytical thinking scores. He submits that, absent a reasonable
explanation from the CRA, this Court should conclude the initial analytical
thinking score was unreasonable and the higher score should apply
retroactively.
[38]
I
have several difficulties with the Applicant’s submissions on this point.
[39]
First,
the Applicant does not identify any process within the CRA selection process
that provides for retroactive applications of assessment results outside of the
recourse mechanisms discussed above in which the Applicant was unsuccessful.
[40]
Second,
the Respondent’s explanation for the different scores is logical. The
assessment criteria changed in the interim between the first and second
assessments. These changes were advertised in a CRA newsletter. The Respondent
submits that the fact that the Applicant submitted the same answers and
obtained different scores is the obvious outcome to a change in the definition
of analytical thinking.
[41]
The
Applicant states this evidence should not be accepted as the information was
not before the Selection Board. However, the criteria change is relevant to the
level 2 score on the second competency overview and in my opinion may be
considered in the understanding of that score in this forum.
[42]
Finally,
the Applicant submits the first result is still arbitrary because the change in
the criteria was unsubstantial. The Respondent submits otherwise. The
Respondent submits the Applicant benefited by the change as he now achieved a
higher score on resubmitting the same competency overview.
[43]
While
changes in wording and organization of the criteria are limited, they are more
than merely grammatical and concern specialized subject matter. I would decline
to venture into a comparative assessment of criteria for analytical thinking as
it relates to information technology.
[44]
In
my opinion, the Respondent has offered an acceptable explanation for the
Applicant’s different scores on the analytical thinking exercise.
Conclusion
[45]
I
am dismissing the application for judicial review with respect to the January
5, 2009 decision.
[46]
I
have found the Selection Board erred in its reason for denying reconsideration
of the Applicant’s exclusion from the CS-03 IT selection process. In my view,
reconsideration is moot since the Applicant has not succeeded in the judicial
review if the Decision Review of the January 5, 2009 decision and there does
not exist any mechanism by which the Applicant’s subsequent level 2 assessment score
can be applied retroactively.
[47]
Judicial
Review is a discretionary remedy. As I see no reason to order the Selection
Board to reconsider its selection decision. I decline to exercise my discretion
and grant judicial review.
[48]
Given
the somewhat divided success, I make no order for costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review of the January 5, 2009 decision review is
dismissed.
2. I
decline to exercise my discretion to grant judicial review of the Selection
Board decision. The application for judicial review of the June 18, 2009
decision is dismissed.
3. I
make no order on costs.
“Leonard
S. Mandamin”
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