Date: 20120612
Docket: T-1132-11
Citation: 2012 FC 720
Toronto, Ontario, June 12, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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JOHN FISCHER
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review, brought under section 18.1 of the Federal
Courts Act, RSC, 1995, c F-7, in which Mr. Fischer seeks to set aside the
decision of a Classification Grievance Committee [the Committee], agreed to by
the nominee of the Deputy Head of Environment Canada on June 22, 2011. In the
decision in question, the Committee recommended to the Deputy Head of
Environment Canada that Mr. Fischer’s classification grievance should be
rejected. In so doing, the Committee agreed that one of the factors which Mr.
Fischer sought to have upgraded should be upgraded, but, without notice to Mr.
Fischer, determined that another factor should be downgraded. (Both the
employer and Mr. Fischer concurred that the factor in question should be
maintained, and it was therefore not the subject of debate before the
Committee.) As is more fully detailed below, the decision of the Committee
turned on the decision to downgrade the factor in question.
[2]
In
this application for judicial review, Mr. Fischer alleges that the Committee
committed a breach of procedural fairness and violated his legitimate
expectations in failing to provide specific notice that it was considering the
downgrading and in failing to provide him with a specific opportunity to make
submissions in respect of the factor that was downgraded. Mr. Fischer argues in
the alternative that the decision of the Committee was unreasonable.
[3]
This
case raises an issue regarding the scope of disclosure required by a classification
grievance committee which has not previously been addressed by this Court. To
place the issue in context, it is useful to briefly review the statutory scheme
governing classification in the federal public service and the facts giving
rise to this application.
The Statutory
Background
[4]
In
the federal government, unlike the situation which typically prevails in the
unionized environments in the private sector, classification of employees is a
unilateral management right (subject, however, to the requirements of the Canadian
Human Rights Act, RSC, 1985, c H-6 in matters related to pay equity). The Financial
Administration Act, RSC, 1985, c F-11 [FAA] grants jurisdiction to the
Treasury Board over personnel management in the federal public service generally
(under para 7(1)(e)) and over classification of positions and employees
specifically (under para 11.1(1)(b)). The Treasury Board is empowered to
develop its own rules and procedures (FAA at subsection 5(4)). Pursuant to
section 7 of the Public Service Labour Relations Act, SC 2003, c 22, s 2
[PSLRA], classification issues may not be the subject of collective bargaining
by public service unions. Thus, the Treasury Board, which acts as the employer
of most federal public servants, has the ability to unilaterally promulgate
classification levels and frameworks and it has done so through the adoption of
formalized, written classification standards.
[5]
Under
section 208 of the PSLRA, public servants may file grievances in respect of a
number of items, including in respect of "any occurrence or matter"
affecting their terms and conditions of employment. This includes disputes
regarding the classification attributed to their positions. Such grievances,
however, are not referable to adjudication before the Public Service Labour
Relations Board or any other independent third-party tribunal. Rather, they are
subject to determination by the employer, in accordance with the Classification
Grievance Policy and Classification Grievance Procedure, established
by Treasury Board.
[6]
The
Classification Grievance Policy and Classification Grievance
Procedure provide that classification grievances will be reviewed by a classification
grievance committee, composed of three individuals, knowledgeable in
classification techniques and the application of the federal government's
classification standards, who were not involved in the classification decision
being grieved and who are not in a position of potential conflict of interest.
The Grievance Procedure contemplates that the affected employee will be
afforded the opportunity to make written and oral submissions to the grievance
committee and that the committee may seek out additional information from
management, which it must share with the affected employee. Both the Classification
Grievance Policy and Classification Grievance Procedure specifically
provide that the classification grievance committee will hold its deliberations
in camera and will review all aspects of a classification decision,
regardless of whether or not they are being challenged in the grievance. The Policy
stipulates in this regard: “All aspects of the decision being grieved, i.e.,
group and sub-group allocation, level and ratings (where applicable) accorded
to all factors, must be examined even though, in some instances, not all are
being challenged.” A similar direction is contained in the Procedure. A
classification grievance committee, therefore, is under a duty to conduct a
full review of all aspects of the classification attributed to a grieved
position.
[7]
The
Classification Grievance Procedure contemplates that the
classification grievance committee will issue a report, making a recommendation
on the classification of the grieved position and containing a justification
for the recommendation, and that the report will be submitted to the Deputy
Head of the portion of the public service where the grievor works, for the
Deputy Head’s approval or non-acceptance. There is no appeal from a decision of
a Deputy Head in classification grievance matters, but a judicial review
application is available to this Court under section 18.1 of the FCA.
The Factual Background
[8]
Mr.
Fischer is employed in the federal public service at Environment Canada in the
position of Environmental Assessment Coordinator. He is a member of the
bargaining unit represented by the Professional Institute of the Public Service
of Canada [PIPSC]. His position of Environmental Assessment Coordinator was
classified by the employer as falling within the Physical Sciences and
Professional category (PC) at the PC-02 level.
[9]
The
classification standard applicable to Mr. Fischer’s position is the
Classification Standard for the Physical Sciences – Science and Professional
Category [the PC Classification Standard]. The PC Classification Standard
contains five levels (PC-01 to PC-05), and the assignment of a position to a
classification level is governed by five different factors. These are: 1 –
Kind of Assignments; 2 – Complexity of the Work; 3 – Professional
Responsibility; 4 – Managerial Responsibility; and 5 – Impact of
Recommendations and Activities. Each factor, in turn, has a number of
sub-elements.
[10]
Under
the PC Classification Standard, those rating positions are required to evaluate
each sub-element in each factor and assign it a rating from 1 to 5. This is
accomplished, in part, through the comparison of the work of the position being
evaluated to that described in certain bench-mark positions, which form part of
the PC Classification Standard. The ratings assigned to each sub-element, in
turn, determine the rating assigned to each factor, with the degree for the
factor being determined by the preponderance of ratings given for each of the
sub-elements that comprise the factor. Where there is no preponderance, the PC
Classification Standard requires that the raters compare the overall intensity
of the requirements of the position for the factor with respect to the
characteristics of that factor in the bench-mark positions and assign to the
position being evaluated “the factor degree that best equates, on the whole, to
the bench-mark positions”.
[11]
After
the factors are each rated at a degree from 1 to 5, the PC Classification
Standard requires that, next, the position be rated based on the preponderance
of ratings given for each of the five factors.
[12]
Mr.
Fischer’s position has historically been classified at the PC-02 level under
the PC Classification Standard. Due to certain changes in his job functions, he
applied to have his position re-evaluated in late 2009, after a revamped work
description was prepared and agreed to between himself and the employer. On
March 15, 2010, the employer issued its classification decision, with an
effective date of November 1, 2004. In that decision, the employer maintained
its overall rating at the PC-02 level, and maintained the ratings and rationale
for each factor that had previously pertained.
[13]
On
March 17, 2010, Mr. Fischer filed a classification grievance, which was
ultimately referred to the Committee, in accordance with Treasury Board’s Classification
Grievance Policy and Classification Grievance Procedure. The
Committee was chaired by a certified classification specialist, and its other
two members possessed experience in federal government classification matters.
[14]
In
accordance with the Classification Grievance Policy and Classification
Grievance Procedure, the Committee held a hearing, and invited Mr.
Fischer and a representative from PIPSC to make a presentation to the
Committee. They did so, filing a detailed written brief and over 1000 pages of
supporting documentation. The hearing took over six hours to complete. At the
outset of the hearing, the Committee Chair advised Mr. Fischer and his union
representative that, in accordance with the Treasury Board’s Classification
Grievance Policy and Classification Grievance Procedure, the
Committee would review all aspects of Mr. Fischer’s position, and that the
process could result in the upgrading, downgrading or confirmation of the group
and level of his position.
[15]
Mr.
Fischer’s union representative presented on his behalf and argued that the
ratings given under two factors –Kind of Assignments and Impact of
Recommendations and Activities – should be upgraded from Degree 2 to Degree 3.
She concurred with employer’s ratings of the remaining three factors, including
the Professional Responsibility factor, which the employer had rated at Degree
3. The submissions (both verbally and in writing) on behalf of Mr. Fischer were
confined to evidence and argument regarding the two factors being challenged.
At the end of the presentation, the PIPSC representative concluded by reading
from the written presentation, stating, “The Institute reserves the right to …
provide representation on any elements we have not addressed in today’s
presentation which may result in the committee considering a downgrade, prior
to a final and binding decision being rendered”. The Committee did not respond
one way or the other to this purported reservation of rights.
[16]
Following
the hearing, in accordance with the Treasury Board's Classification Grievance
Procedure, the Committee sought clarification from management on several
different points. It did so by way of e-mail, and provided copies of its
questions and responses received from management to Mr. Fischer’s
representative. Mr. Fischer was afforded an opportunity to provide responding
submissions, and he and PIPSC did so, filing an approximately 400 additional
pages of materials with the Committee.
[17]
The
respondent argues that these inquires should have put Mr. Fischer and PIPSC on
notice that the Committee was examining the Professional Responsibility factor
(and thus might well make changes to it) because several of the questions posed
by the Committee related to sub-elements that are measured by the Professional
Responsibility factor. These included several inquiries regarding whether it
was Mr. Fischer or his superiors who possessed the responsibility for making
several different types of decisions. As counsel for the respondent candidly
conceded during the hearing, however, these inquiries are also relevant to one
of the factors that Mr. Fischer had put in issue, namely, the Kind of
Assignments factor. Accordingly, there was nothing in the inquiries made by the
Committee which could reasonably have led Mr. Fischer or his bargaining agent
to anticipate that the Committee might be considering downgrading the
Professional Responsibility factor from the Degree 3 that both management and
Mr. Fischer concurred was appropriate. Indeed, the fact that they did not
anticipate that this might occur is borne out by the 400 pages of submissions
they filed subsequent to the inquiries, which nowhere addressed the
Professional Responsibility factor.
[18]
In
its decision, the Committee accepted that one of the factors being challenged
by Mr. Fischer – Kind of Assignments – should be upgraded from a Degree 2 to a
Degree 3. It did not agree that the other challenged factor – Impact of
Recommendations and Activities – should be upgraded. The Committee, however,
went on to conclude that the Professional Responsibility factor should be
downgraded from Degree 3 to Degree 2. As noted, Mr. Fischer and the employer
had agreed that this factor should remain unchanged at Degree 3 and no
submissions were made in respect of it by Mr. Fischer or PIPSC as they did not
appreciate that it was in play.
[19]
The
PIPSC representative who acted on Mr. Fischer’s behalf in the classification
grievance filed an affidavit in support of Mr. Fischer's application for
judicial review, in which she indicated that these sorts of unilateral
decisions by a classification grievance committee to change a factor that the
parties had agreed upon occur rarely, and that in her experience (and that of
another colleague), when this has occurred, the classification grievance
committee has sought additional representations from the parties on the factor
they were considering changing, prior to finalizing its decision.
[20]
The
recommendation of the Committee turned on its downgrading of the Professional
Responsibility factor. If it had not been downgraded, the Committee would have
recommended an upgrade to Mr. Fischer' position from a PC-02 to a PC-03 level.
[21]
The
classification grievance committee issued its recommendation on June 17, 2011,
and on June 22, 2011 the nominee for the Deputy Head of Environment Canada
accepted it, without amendment. Accordingly, Mr. Fischer’s classification
grievance was dismissed and he remained classified at the PC-02 level.
Was there a
Breach of Procedural Fairness?
[22]
As
noted, this case is the first time this Court has been called upon to address
the issue of whether or not a classification grievance committee must disclose
a potential downgrade that it is considering, in circumstances where the
grievor could not reasonably anticipate that the downgrade might be in play,
but where it has disclosed all the evidence upon which it is making its
decision. Previous cases involved situations where an unanticipated downgrade
was considered by the committee, where the committee also received evidence
relevant to the downgrade, and where it did not disclose either the possibility
of the downgrade or the evidence relevant to it to the grievor. In those
circumstances, both this Court and the Federal Court of Appeal have found there
to be a breach of procedural fairness (Bulat v Canada (Treasury Board), [2000] FCJ No 148, 252
NR 182 (FCA) at
para 10; Chong v Canada (Treasury Board), [1999] FCJ No 176, 236 NR 371 (FCA) [Chong II] at para 14; Hale
v Canada (Treasury Board), [1996] 3 FC 3, [1996] FCJ No 685 (TD) at para 20). In
addition, in Maurice v Canada (Treasury Board), 2004 FC 941 at para 35,
267 FTR 107 [Maurice], Justice Gauthier quashed the decision of a
classification grievance committee, where it failed to disclose that it
intended to refuse to consider a key piece of evidence for technical reasons, related
to the fact that the copy filed with the committee had not been formally
signed.
[23]
The
applicant argues that, while there are no cases directly on point, analogies
may be drawn to other situations or contexts, which hold that procedural
fairness requires that a party be afforded an opportunity to address an issue
which is central to the conclusions of a decision-maker, and that the party
receive and be afforded the opportunity to comment on all material evidence
(citing Danakas v Canada (War Veterans Allowance Board), [1985] FCJ No
32, 59 NR 309 at para 6 [Danakas]; Canada (Attorney General) v
McKenna, [1999] 1 FC 401, 47 Imm LR (2d) 21 at para 7 [McKenna]; Canada
(Attorney General) v Garg, 2004 FCA 410 at paras 7-8, 329 NR 188 [Garg];
Hale at para 20; Bulat at para 10; Lapointe v Canada (Treasury
Board), 2004 FC 244 at para 32, 247 FTR 243; and Chong II at para
13). Counsel for the applicant also argues that if the procedure adopted by the
Committee is allowed to stand, the result will be increased complexity in
classification grievances as grievors will inevitably address all issues of
potential relevance in their initial submissions, even where the employer and
the employee are in concurrence with the result on a particular factor, because
if a grievor fails to do so he or she would have no opportunity to make
submissions on a point that might later become determinative.
[24]
Counsel
for the respondent, on the other hand, asserts that although this case is one
of first impression, the decided authority on the scope of procedural fairness
in classification grievances should result in rejection of this application
because it is firmly established that the procedure before a grievance
committee is non-adversarial and that the content of the duty of fairness owed
by the committee lies at the lower end of the spectrum (citing in this regard Utovac
v Canada (Treasury Board), 2006 FC 643 at paras 13, 16 and 19, [2006] FCJ
No 833; Chong v Canada (Attorney General), [1995] FCJ No 1600, 59 ACWS
(3d) 1124 at paras 39-40 [Chong I]; Chong II at para 12; Maurice
at para 31; Julien v Canada (Attorney General), 2008 FC 115 at para
27, [2008] FCJ No 140; and Bulat at para 9). Accordingly, the respondent
asserts that all that procedural fairness requires is that the grievor be
provided with information that is crucial to the dispute, an opportunity to
respond and that a right of reply is limited to contradictory information or
new facts that may influence the committee's decision but does not extend to
the right to make arguments regarding a potential outcome that the committee is
considering. In short, according to counsel for the respondent, the
classification grievance process is a fact-finding one, and all that needs to
be disclosed are the facts upon which the committee will base its decision.
Contrary to the position adopted by the applicant, counsel for the respondent
asserts that if this judicial review application is granted, the classification
grievance process will be unduly lengthened, as parties would need to be afforded
additional opportunities to make submissions throughout the deliberation
process, which could engender additional inquiries by a classification
grievance committee.
[25]
In
my view, in the circumstances of this case, the requirements of procedural
fairness did require that the Committee disclose that it was considering
downgrading the Professional Responsibility factor and did require that it
afford the parties the opportunity to make submissions on the potential
downgrade prior to rendering its decision. While it is certainly true that the
content of the duty of fairness, in the context of classification grievances in
the federal public service, falls “somewhere in the lower zone of the spectrum”
(Chong II at para 12), in my view, even the minimal requirements of
procedural fairness were not respected here. Mr. Fischer is not seeking the
right to call viva voce evidence, cross-examine witnesses or other
trappings of a full-blown adversarial hearing; rather, he is seeking the
minimal right to be aware of and be afforded an opportunity to make arguments
regarding the determinative issue in his grievance. As Justice Evans noted at
para 10 in Bulat, which dealt both with a failure to disclose an
unanticipated point being an issue and a failure to disclose evidence the
classification grievance committee collected in respect of that point:
[…] this case does not turn on the
precise location on the procedural spectrum of the content of the duty that the
Committee owed to the appellant. An elementary incident of the duty of fairness
is that the individual adversely affected should have an adequate opportunity
to address an issue that the Committee regarded as central to the disposition
of the grievance, but which the grievor did not realise was in dispute and
therefore could not have been reasonably expected to anticipate, and to
address.
[26]
In
my view, these comments apply equally here.
[27]
In
addition, similar failures to disclose central issues relied upon by other
tribunals have been found by the Federal Court of Appeal to constitute breaches
of procedural fairness (see Danakas, McKenna and Garg).
While these other tribunals are distinguishable from a classification grievance
committee in that their processes are more adversarial and involve hearings
more similar to those before a court, the Court's decisions do not turn on the
nature of the process before the tribunal but, rather, on the need to ensure
the fundamental right of an individual to know the case to be met and to be
afforded an opportunity to respond to central issues. Indeed, in my view, this
fundamental right, which is the cornerstone of the audi alteram partem rule,
must be respected in any case where an important interest of an individual is
at stake. Important interests are at stake in classification grievances,
as the outcome will affect grievors’ remuneration and pensions for as long as
they remain in the positions which are the subject of the grievance.
[28]
As
already noted, Mr. Fischer had no reasonable basis to believe that the
Professional Responsibility factor might be an issue, because he and his
employer both agreed that it should be rated at Degree 3 and nothing the
Committee said, nor any of the questions it asked, put him on notice that the
point might be an issue. The general statements contained in the Treasury
Board’s Classification Grievance Policy and Classification Grievance
Procedure or made by the Chair of the Committee at the outset of the
hearing were insufficient notice of the issue. Such general statements were
found by Justice Reed in Hale to “not [be] sufficient notice … to allow
the applicant a meaningful participation in the decision making process” (at
para 26).
[29]
As
for implications flowing from this decision, in my view, requiring disclosure
of an unanticipated issue, in circumstances where the decision of the
classification grievance committee is likely to turn on it, and providing the
parties an opportunity to make submissions in respect of the issue, will not
pose an undue administrative burden on the process. In Bulat, Justice Evans
noted at para 17 that:
[I]t would not have been onerous for the Committee
to disclose to [the applicant] management's position and to allow him to
respond to it… Nor would it have turned the classification grievance process
into a formal adjudication.
These comments apply with equal force in the
circumstances of the present case. In addition, in my view, there is
considerable force in the applicant’s argument that allowing grievances to be
disposed of based on factors that are not discussed nor reasonably anticipated
as relevant by the parties would increase the complexity and length of the
process as it is likely that parties would be forced to address all the
conceivable issues in every grievance, even when several of the factors might
not ever be in issue. Thus, to the extent the implications of this decision are
a relevant consideration, they militate strongly in favour of allowing the
application.
[30]
Accordingly,
for these reasons, in the circumstances of this case, the Committee violated
the principles of procedural fairness in basing its decision on the downgrade
of the Professional Responsibility factor and in not disclosing the fact that
it might downgrade the factor to Mr. Fischer, who had no reason to believe it
might be in play. The Committee’s decision must therefore be set aside. In
light of this determination, it is not necessary to address the arguments made
by the applicant regarding the doctrine of legitimate expectations nor
regarding the alleged unreasonableness of the recommendation of the Committee.
Remedy and
Costs
[31]
Counsel
for Mr. Fischer argued that the appropriate remedy would be to set aside only
the portion of the decision on the Professional Responsibility factor, and
remit the matter of the rating of that factor to a differently constituted
classification grievance committee for recommendation and thereafter decision
by the Deputy Head of Environment Canada (or the Deputy’s nominee). Counsel for
the respondent, on the other hand, argued that in light of the duty of
classification grievance committees to engage in a holistic review of the
position and all facets of the classification standard, if I were to allow this
application for judicial review, I should set aside the entire decision and
remit the entire grievance for reconsideration by a freshly constituted
classification grievance committee. In my view, the approach suggested by the
respondent is the correct one, and is in accordance with the intent of the
Treasury Board’s Classification Grievance Policy and Classification
Grievance Procedure.
[32]
In
terms of costs, the parties agreed that the appropriate amount was the
all-inclusive sum of $3000.00, and I find this amount to be reasonable in the
circumstances of this case.
[33]
Accordingly,
the decision of the Committee, agreed to by the nominee of the Deputy Head of
Environment Canada on June 22, 2011 will be set aside, with costs in the amount
of $3000.00, and Mr. Fischer's grievance will be remitted to differently
constituted classification grievance committee for fresh consideration.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is granted, with costs to the applicant in the
all-inclusive amount of $3000.00;
2.
The
decision of the Committee, agreed to by the nominee of the Deputy Head of
Environment Canada on June 22, 2011, is set aside; and
3.
Mr.
Fischer’s classification grievance shall be remitted to a differently
constituted classification grievance committee for fresh consideration.
"Mary
J.L. Gleason"
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