Date: 20090306
Docket: T-240-08
Citation: 2009
FC 242
Ottawa, Ontario,
March
6, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
LESLIE GRAUER, DIANA HARTEL,
MARILYN MONTGOMERY, and VINH NGUYEN
Applicants
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges the January
14, 2008 decision of a Deputy Head who, by approving the recommendation of a
Classification Grievance Committee (the Committee), found that the duties and
responsibilities of the grieved position of Senior Psychologist – Regions is
properly classified at the PS-03 level. The Applicants’ argument is that the
classification should have been raised to the PS-04 level and Deputy Head’s
failure to do so is based on substantive and procedural error.
[2]
For the following
reasons I reject the Applicants’
arguments.
[3]
It is agreed that for
the purposes of the present review the decision and conduct of the Committee
merge into the Deputy Head’s decision (the Decision).
[4]
It is further agreed
that the standard of review of the Decision is reasonableness and that, because
the Committee is
in effect an expert tribunal, the Decision is to be accorded high deference and
issues of procedural fairness are to be judged on the standard of correctness.
I.
Substantive Arguments:
A. Filing of an affidavit by the
Chairperson of the Committee
[5]
The
Chairperson’s affidavit contains a mix of uncontested factual statements and
contested opinion with respect to the conduct of the grievance. I find that
only the factual statements are relevant and, therefore, admit the affidavit
only to prove the facts found in the following paragraphs: paragraphs 1-4; and
with respect to paragraph 10 the first three paragraphs under the heading
“Degree of contact with National Headquarters”, the first paragraph under
“Provision of all business lines in the regions”, and the first paragraph under
“National scope and impact of responsibilities”.
B.
Email from management representative
[6]
On January 21, 2007,
the management representative sent several members of the Committee and the
Applicants, inter alia, an email expressing concerns that the
information he provided to the Committee was misrepresented and/or misunderstood
and provided clarifications. I find that the Committee did not misrepresent the
material provided by the management representative but, contrary to the
Applicants’ position, used it to come to a different conclusion.
[7]
I agree that the
Committee did make a mistake in finding that the Director General is a functional
expert as pointed out by the management representative. However, I find nothing
turns on this error.
C. Description of Key Activities
[8]
In the
present case, prior to the grievance at issue, an agreement was reached between
the Applicants and management as to the Key Activities of the Applicants’ job
description. The relevant Key Activity of the description is as follows:
“plans, designs, develops and delivers new and original products and services
to address the unique needs of clients” (see Applicants’ Application Record, p.
113). The Applicants argue that the creative elements of this feature of the
job description entitle them to the higher classification of PS-04. In my
opinion, this argument fails because this activity only relates directly to
client services which are the focus of the PS-02 classification (see
Applicants’ Application Record, p. 149).
II.
Procedural Fairness Arguments
A. Composition of the Committee
[9]
The Applicants argue
that the Committee’s composition did not meet the requirements set out in the
procedures, and, therefore, constitutes a breach of procedural fairness. Specifically,
the Applicants cite the Classification Grievance Procedure: Canada Public
Service Agency, approved as TB Minute 821755, dated June 23, 1994, under V.
Classification Grievance Committee (the Procedure) to support the argument that
to not include a person who is knowledgeable in the type of work being grieved
is an error.
[10]
I dismiss this
argument because the Procedure is permissive: it only states that the member be
“from within or outside the department, preferably a line manager with
experience in applying the standard(s) being used and knowledgeable of the type
of work being grieved” [my emphasis].
B. The Committee’s deliberations
[11]
The Applicants argue that
because the Committee apparently gave thought to the grievors’ submissions
before hearing from the management representative a breach of procedure
occurred. I find that no unfairness arose from this fact because the Committee
provided its recommendations only after considering all the evidence and
submissions.
C. Contradictory information
[12]
The Applicants argue
that they were not provided with an opportunity to reply to evidence provided
by the management representative that they believed to be contrary to what the
representative had said in a previous grievance. In the classification
grievance process, neither the griever nor employer has a vested right to respond
to the other’s submissions. However, applicants do have a right to have their
main argument considered by the Committee and to be advised of crucial
information about which they could not reasonably have had knowledge (see Bulat
v. Canada (Treasury Board) (2000), 95 A.C.W.S. (3d) 99 at para. 10; Groulx
v. Canada (Veterans Affairs), 2007 FC 293 at para. 19; Utovac v. Canada
(Treasury Board), 2006 FC 643 at para. 19). I dismiss the Applicants’
argument because I find that the previous statements in issue are not
substantially different in kind from the statements made in the present
grievance but are only more detailed (see Applicants’ Application Record, pp 93
and 44). As a result, I find that Applicants cannot be said to have been taken
by surprise.
III.
Conclusion
[13]
I find no reviewable
error in the Decision.
ORDER
For the reasons provided, the
Application is dismissed.
I make no order as to costs.
“Douglas
R. Campbell”
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