Date: 20090331
Docket: T-1984-07
Citation: 2009 FC 329
Toronto, Ontario, March 31, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
ROY HAGEL, ALAIN AUBUT, DAVID
ALEXANDER, LYNN ANDERSON,
CHRIS ARGUE, MICHAEL BAHLS, TERRY
BARSANTI, JAMIE BASTARACHE,
ROGER BEAUDIN, PAULA-MARIE BEAUDOIN, PHIL
BECKERSON, MANDY
BELDOCK, STEPHANE BELOIN, DOUG BENNIE,
LOUIS BERBERI, JATINDER
BHANGAV, BRUCE BICKLE, PERRY BIRTCH,
CATHERINE BLACK, MERLE BLACK, DARRIN BOISMIER, CHANTAL BOULET, FRANCINE
BOULIANNE, DOUG BRANTON, JAN BROCK, JOANNE BROWN, ROGER BROWN, DANIEL BUBAS,
JACQUES BUJOLD, LUKE BURY, SHERI BUSWELL, JEAN CAMPBELL, PAUL CAREY, BRADLEY
CARLETON, LUCIE CELLUCCI, CLAY CHAPPELL, BENOIT CHARRON, MARIE CHEVRY-GEORGES,
DEVESH CHIKHLIA, MARK CLAVEAU, GLENN CLEARY-FORTIN, PHILIP CRABBE, JACQUES
CRÊTE, GARY CROWE, BRUCE CUMMINGS, DANIELLE DANEAU, HARRY DEARING, ISABELLE
DESLAURIERS, MICHELINE DICAIRE, DONNA DIDONATO, LARRY DOHERTY, HERVE DOMINIQUE,
MICHAEL DOUGHERTY, YVES DUTEAU, JUDITH-ANNE DYMOND, THOMAS DYMOND, SHEILA
ELLIS-BAILEY, ROSA FEBBRARO, PIERRE FONTAINE, MANON FORTIN, RICHARD FOURNIER,
TRACEY GAGNON, STEVEN GAULIN, SYLVAIN GAUTHIER, MARG GAYLER, SHERRY GERSTL,
RICHARD GILL, PIERRE-PAUL GINGROW, MARTIN GODARD, NICOLE GOODMAN, SERGE
GOSSELIN, DOUG GOURLIE, HELEN GOWARD, DOUG GRANDFIELD, PHILIPPE GRENIER, KEN
GRESLEY-JONES, RAYMOND GUAY, PIERRE GUILLEMETTE, CLAYTON HALL, ED HART, PHILIP
HAUGH, MARK HAYES, HELEN HEMMINGS, JIM HENDERSON, NICOLE HOULE, RUTH-ANN
ILIGAUDS, DUANE INGRAM, DANIEL JACQUES, MICHELE JARRY, RICK JOHNSON, MONIQUE
JOLIN, NANCY KELLY, JONATHAN KINI, ANDRE LACHAPELLE, SUSAN LANGLEY, ERIC
LAPIERRE, CLAUDE LAURENCE, DARRYL LAVIA, SYLVAIN LECLERC, BOB LEDOUX, PIERRE
LEMIEUX, CLAUDE LEMOINE, BRIAN LENEVE, PIERRE LESSARD, GILLES LESSNICK, ZETTA
LOBSINGER, ROB LANG, NATHALIE LONGPRE, DAN LORENTE, FRANK LORITO, TERRY
LUBINSKI, CLAUDE LUSSIER, BARBARA MACDONALD, MAUREEN MACDONALD, INA MACRAE,
DARRELL MAILLET, DANIEL MALLORY, MIKE MALLOY, ELIZABETH MALONEY, ROSS MANGAN,
JOHN MARIC, MICHEL MARTINEAU, TANYA MCALEER, CAROLE MCCLELLAND, ANNE MCCONNEL,
BRUCE MCKEEVER, JEFF MCMENEMY,
MARG MCPHEDRAN-AXFORD, GORD MELANSON,
ANDRE METIVIER, MARISA MINNITI-ROCCO, JOHN MOERLAND, MANJIT SINGH MOORE, DON
MURRAY, MARILYN MURRAY, MARIA NOHOS, MARTIN OHARA-MINER, MICHAEL OKOROFSKY,
SYLVIA OSBORNE, CLAUDE PAQUET, MARY PARENTE, GREG PATTERSON, MARK PERGUNAS,
MARIANNE PERREAULT, BRAD PERZUL, IVAN PETERSON, MARGO PICARD, BERNIE PITURA,
LORELEI PLATA, MARY PONTONI, HELENE PORTER, JULIE PRÉFONTAINE, GERRY PRICE, JIM
PRIEBE, KATHY E. PRINGLE, AL PRONIK, ROSELINE PROULX, WENDY QUICK, SHEILEN
RAJA, JATINDER RANDHAWA, TOM RANKIN, MARTINE RHEAULT, LEANNE RICHARDSON, PHIL
ROCCO, FRANCE ROIREAU, DENNIS ROSS, TERRY RUTHERFORD, JOE RYAN, LOU
SALVALAGGIO, MARY SANDHU, DAVID SAXBY, FRANCOIS SENECAL, ARTURO SILVA, BRIAN
SIMPSON, ANTHONY SIRIANNI, DEBBIE SMYTH, JACQUIE STADEL, SHELLY STEPHENS,
MICHEL ST-PIERRE, ALAIN SURPRENANT, AKEMI JULIE SUYAMA, PAUL TAYLOR, JIM
THOMPSON, LIBBY TIBERI, GERALD TOUSIGNANT, KIM UPPER, SUZANNE VANASSE, LARRY VIDITO,
JAMES VOSPER, DOUGLAS WALLACE, JEFF WALTERS, ELIZABETH WARREN, CATHY WILCOTT,
KATHIE WILLARD, PIERRE YELLE, KENNETH YICK, LINDA YOUNG, MARK ZANEVELD, TIM
ZIOLA, JUDY ZIVANOV
Applicants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicants are all public servants. When the Crown decided to consolidate its
customs operations under a new agency, they grieved decisions that they
considered to have negative financial consequences for them. Although they remained
Crown employees throughout, the representative of the Crown who was their
employer changed from a separate employer to the Treasury Board. They are
seeking a judicial review of the decision at the final level of the grievance
process. As a result of legislative provisions, they are unable to refer the
grievance to adjudication and they are unable to attempt to obtain financial
redress thorough court process. Judicial review is their only option. For the
reasons that follow, their application for judicial review is dismissed.
Background
[2]
The
Public Service Staff Relations Act, R.S. 1985,
c. P-35 (PSSRA) was replaced by the Public Service Labour Relations Act,
S.C. 2003, c. 22 (PSLRA), which came into force on April 1, 2005. Under both
Acts, federal public servants are employees of the Crown either as
represented by the Treasury Board or as represented by a “separate employer” (under
the PSSRA) or a “separate agency” (under the PSLRA).
[3]
The
Canada Customs and Revenue Agency (CCRA) was created and became a separate
employer on November 1, 1999. Various branches of the Department of National
Revenue, an employer represented by Treasury Board, were converted into CCRA.
The employees of those departments then became employees of CCRA, a separate
employer.
[4]
As
a separate employer CCRA had its own authority to set terms and conditions of
employment for its employees. CCRA created a new occupational group, the
Management Group (the MG Group), and negotiated a collective agreement with its
unions applicable to the MG Group. The applicants all occupied managerial or
confidential positions within the MG Group and thus were not unionized;
however, the terms and conditions of the MG Group collective agreement were
applied to them.
[5]
On December 12, 2003,
the Canada Border Services Agency (CBSA) was created by a series of Orders in
Council. One of these, P.C. 2003-2064, transferred the control and
supervision of certain portions of the CCRA to the CBSA. At the same time, a
regulation was passed making subsections 37.3(1) and (2) of the Public
Service Employment Act (PSEA) - the so-called “block transfer”
provisions - applicable to the affected employees. Thus,
the applicants were transferred from CCRA to CBSA effective December 13, 2003.
As was noted by the applicants in their memorandum they “were not given the
choice of whether to remain with the CCRA or be transferred to the CBSA” and
“they continued to work in the same work locations and performed substantially
the same duties at the CBSA as they had at CCRA”.
[6]
At
the time of transfer, and shortly thereafter, the respondent made statements
concerning the terms and conditions of employment of its employees that would
be in place upon transfer. The applicants describe these as “assurances”.
These statements included the following:
All of their existing terms
and conditions of employment, their current rates of pay and job classification
levels will be accepted and continued in the new organization until such time
as the appropriate processes are in place to establish the ongoing terms and
conditions of employment
-Notice to All Staff, December
12, 2003
On transfer to the new Agency,
the current terms and conditions of employment, including salaries will remain
in effect.
-Questions and Answers
Employees transferring from [the
CCRA] will not be adversely affected. We have committed to the continuation of
their present terms and conditions of employment, including classifications and
salaries, as well as accrued benefits … subject to a transition period.
-Letter from Assistant
Secretary, Labour Relations and Compensation Operations, Human Resources
Management Office, Treasury Board, dated December 23, 2003
[7]
Behind
these statements was the fact that on December 12, 2003, Treasury Board, by
decision 831096, approved the continuation of terms and conditions of
employment in place at CCRA, subject to a transition period that was to last
until new collective agreements were in place.
[8]
If
the applicants had remained employees of CCRA then, under the MG Group
collective agreement, they would have received an economic increase in salary
of 2.25% on June 21, 2004. The CBSA provided the applicants with a lump sum
payment rather than the expected salary increase on June 21, 2004. The
applicants complain that as a result, overtime pay and other salary-related
benefits were calculated on the basis of the lower salary that did not include
the economic increase to which they were entitled.
[9]
The
applicants further complain that under the terms and conditions in place as
employees in the MG Group at CCRA they were eligible for an annual performance
bonus of between 2% and 5% of salary. The performance bonus would have been
included when calculating the superannuation benefit for the eligible
employees.
[10]
On
August 25, 2005, CBSA issued a Communiqué to the applicants stating that MG
Group employees, such as they, would return to their “legacy” occupational
groups in the public service, which the Court understands to refer to the
occupational groups covered by existing collective agreements to which the
Crown as represented by Treasury Board is a signatory. As a consequence, the
applicants were reclassified to the PM occupational group. The Communiqué
further stated that the signing of the collective agreement between Treasury
Board and the union covering the PM occupational group would mark the end of
the transition period referenced in the statements set out in paragraph 6,
above. The transition period ran from December 12, 2003 to June 20, 2005.
[11]
The
rates of pay under the MG Group agreement were higher than under the PM
agreement and did not include performance pay. As a result, the applicants
claim they have had their base salaries frozen. Also, payment of performance
bonuses has ceased. As a result, all of the applicants claim to have suffered
a significant loss of remuneration.
[12]
In
late 2005, the applicants each submitted a grievance concerning the decision,
as they put it, “not to protect the terms and conditions of their employment”.
By agreement, all of the applicants’ grievances were heard together at the
final level of the grievance process. That hearing took place on May 30, 2007.
The grievors presented a 34 page written submission. Paul Burkholder, the
Vice President, Human Resources Branch, CBSA, who was to respond to the
grievances, was not personally in attendance.
[13]
The
submission set out the basis of the applicants’ grievances as follows:
(a)
the
receipt of lump sum equivalents that would not form part of their base salary
in 2004 and 2005 rather than salary revisions as per the relevant collective
agreement;
(b)
that
the ending of ‘pay increments’ as of June 21, 2005, was contrary to the
Treasury Board policy entitled Regulations Respecting Pay on
Reclassification or Conversion;
(c)
that
the reclassification to a group and level having a lower maximum rate of pay
with no salary protection was contrary to the Regulations Respecting
Reclassification or Conversion.
[14]
The
remedies the applicants sought with respect to their three items of concern
were as follows:
(a)
That
salary earned from December 12, 2003 to June 20, 2004, be paid according to the
terms of the MG Group collective agreement;
(b)
That
pay increments after June 20, 2005 be paid according to “Salary Protection
Status” as set out in Regulations Respecting Pay on Reclassification or
Conversion;
(c)
That
those having been reclassified to a group and level having a lesser maximum
rate of pay be placed in “Salary Protection Status” as set out in the Regulations
Respecting Pay on Reclassification or Conversion and that those previously
eligible for performance pay continue to be eligible, in accordance with the
definition of “Salary Protection Status.”
[15]
A
document entitled Final Level Grievance Précis was prepared by Catherine
Anderson of Corporate Labour Relations, outlining the nature of the grievances
and their background. She was present at the grievance hearing together with
another person from the respondent\s labour relations group. The Précis
outlines in bullet form the applicants’ representations and the corrective action
requested. It also sets out management’s position in succinct terms,
referencing the position of Treasury Board Secretariat (TBS):
CBSA dealt with TBS officials
extensively on the question of how to integrate MGs into the public service. It
was the view of TBS, as the employer, that salary protection could not apply
because the MG rates of pay did not exist in that part of the public service
for which TBS was the employer. The return-to-legacy with salary maintenance
regime was the process determined by TBS. CBSA followed the instructions of the
employer and, in so doing, treated every former MG as equitably and
consistently as possible.
The Précis concluded with a recommendation
that “[u]nder the circumstances, CBSA had no option but to follow the instructions
of Treasury Board Secretariat”, and that “there is no choice but to deny the
grievances.” A draft final decision nearly identical to the decisions
ultimately issued was appended to the Précis.
[16]
The
decision of Paul Burkholder at the final level of the grievance procedure was
rendered on Oct. 3, 2007. Each grievor received a similarly worded decision.
The example in the applicants’ record was sent to Mr. Hagel. It is brief
enough to quote in full:
The following is in response
to your grievance concerning the decisions made and the process utilized in
connection with the integration of MG employees, formerly employed by the then
named Canada Customs and Revenue Agency, to the Canada Border Services Agency
(CBSA).
While I am very familiar with
the above-mentioned exercise, I have, nevertheless, carefully reviewed the
content of your grievance and considered the submissions made by your
representatives in the course of the grievance consultation process.
As we are all now aware, the
movement of employees from a separate employer to an agency for which the
Treasury Board is the employer presented many complications. The most difficult
of these was the integration of the MG and SM populations because no such
classifications existed in the Treasury Board universe. The manner in which
CBSA was created represented a unique situation that was not contemplated in
existing human resources policy.
CBSA officials including the
President of CBSA dealt with the Treasury Board Secretariat extensively on this
matter. In accordance with its authority as the employer’s representative,
Treasury Board Secretariat determined the manner by which the MG integration
was to occur. CBSA, in turn, treated all MG employees equitable and
consistently in accordance with the employer’s instructions.
In light of the foregoing, I
cannot grant the corrective action you have requested.
[17]
There
is no dispute between the parties that under the PSLRA, this grievance is not
of a type that may be referred to adjudication after the final level of the
grievance process in accordance with section 209; thus, pursuant to section 214,
the decision is therefore final and binding for the purposes of the Act. Furthermore,
under section 236 of the PSLRA, the grievance process “is in lieu of any right
of action that the employee may have may have in relation to any act or
omission giving rise to the dispute.”
Issues
[18]
The
applicants have raised the following four issues:
(a)
What
is the standard of review?
(b)
Did
procedural fairness require that the decision-maker attend the hearing of the
grievance in person?
(c)
Were
the reasons given by the decision-maker adequate to comply with the requirements
of procedural fairness?
(d) Did the decision-maker
fail to consider and apply Treasury Board’s Terms and Conditions of
Employment Policy, the Regulations Respecting Pay on Reclassification or
Conversion, and section 37.3 of the Public Service Employment Act?
Analysis
Standard
of Review
[19]
The
applicants submit that the Court should review the decision against a correctness
standard, both with respect to issues of procedural fairness, and with respect
to the actual merits of the decision. The respondent is of the view that the
appropriate standard of review is reasonableness, but concedes that “questions
relating to procedural fairness are to be weighed against the [Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817] criteria.”
[20]
The
standard of review analysis prescribed by the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008
SCC 9, requires the Court to first ask whether the existing jurisprudence has
satisfactorily determined the degree of deference on the issue. If the
existing jurisprudence is unfruitful, then the Court must determine the
appropriate standard having regard to the presence of any statutory direction
in the form of a privative clause, whether the decision turns on determinations
which are primarily factual or legal in nature, and whether or not there is a
discrete administrative regime with respect to which the decision-maker has
particular expertise. It is notable here that the example of the latter
provided by the Supreme Court in Dunsmuir was labour relations.
[21]
Prior
to Dunsmuir, on judicial review of non-adjudicable classification
grievances arising under section 91 of the PSSRA, this Court generally adopted
a patent unreasonableness standard of review, as it appears from the cases
canvassed by Justice Michel Shore in Julien v. Canada, 2008 FC 115, at
para. 24 and following. In this case, however, it is common ground that the
grievances arose out of an unprecedented factual situation. Because we are not
dealing with classification grievances in the ordinary sense, but with a novel situation,
a fresh standard of review analysis is appropriate.
[22]
The PSSRA
was repealed on March 31, 2005, and the governing statute is now the PSLRA.
The categorization of adjudicable and non-adjudicable grievances under the
PSLRA remains basically unchanged from what that under the PSSRA. Section 208
of the PSLRA is equivalent to the former section 91 of the PSSRA.
[23]
Urging
deference, the respondent says that the impugned decision is insulated by
section 214 of the PSLRA, a privative clause. That provision reads as
follows:
|
214. If an individual grievance
has been presented up to and including the final level in the grievance
process and it is not one that under section 209 may be referred to
adjudication, the decision on the grievance taken at the final level in the
grievance process is final and binding for all purposes of this Act and no
further action under this Act may be taken on it.
|
214.
Sauf dans le cas du grief individuel qui peut être renvoyé à l’arbitrage au
titre de l’article 209, la décision rendue au dernier palier de la procédure
applicable en la matière est définitive et obligatoire et aucune autre mesure
ne peut être prise sous le régime de la présente loi à l’égard du grief en
cause.
|
[24]
In
my view, this is a weak privative clause. Unlike a full or true privative
clause, it does not purport to preclude judicial review. Therefore, if
anything, it would point towards a lesser degree of deference.
[25]
Matters
that may be grieved but not adjudicated are varied. It is not in every case
that the decision-maker will possess any more expertise than the Court,
particularly where questions of law are involved. In this case, the applicants
framed their grievances with reference to administrative policies, not laws. I
am satisfied that the application of policies and procedures is within the
specialized expertise of the decision-maker, which points to deference.
[26]
When
one examines the statutory scheme as a whole, it is clear that it constitutes a
comprehensive scheme for dealing with employment related disputes, whereby
Parliament has established an exclusive mechanism of non-adjudicative dispute
resolution for grievances which do not involve demotion or termination, or
disciplinary actions resulting in financial penalty. This has implications for
the level of deference the Court should show to decision-makers acting within
this scheme. In this regard, it is noted that in Vaughan v. Canada, [2005] 1 S.C.R. 146,
Justice Binnie, writing for a majority of the Court, stated:
I do not accept […] that comprehensive
legislative schemes which do not provide for third-party adjudication are not,
on that account, worthy of deference. It is a consideration, but in the case
of the PSSRA it is outweighed by other more persuasive indications of clues to
parliamentary intent.
…
While the absence of independent
third-party adjudication may in certain circumstances impact on the court’s
exercise of its residual discretion (as in the whistle-blower cases) the
general rule of deference in matters arising out of labour relations should
prevail” (emphasis added).
What was at issue in Vaughan was whether the
PSSRA excluded recourse to the superior courts as an alternative to the
non-adjudicative grievance process provided for therein. The majority answered
that question in the affirmative leaving room only for a “residual” superior
court competence. As noted, under the PSLRA, exclusive jurisdiction is now
legislated at section 236.
[27]
In
light of the above, I conclude that with respect to the merits of the decision,
the appropriate standard of review is reasonableness. It would be contrary to
the reasoning in Vaughan to adopt a correctness standard, as
advocated by the applicants.
Procedural
Fairness
[28]
It
is well-established that procedural fairness is reviewable on a correctness
standard:
Sketchley v. Canada, 2005
FCA 404, at para. 111.
[29]
Whether
there is merit to the applicants’ submissions regarding adequacy of reasons and
the non-attendance of the decision-maker at the grievance hearing turns on the
specific content of the duty of procedural fairness in this case.
[30]
In
the applicant’s submission, because they were precluded from any recourse
outside of the grievance process, it follows that “Parliament must have
intended this process to be a meaningful process for adjudication of the
Applicant’s rights.” From this, they argue, a requirement for an in-person
hearing as well as fulsome reasons should be deduced. They rely in this
respect on the Federal Court of Appeal’s discussion of the adequacy of reasons
in Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C.
25, as well as a passage from Brown & Evans, Judicial Review of
Administrative Action in Canada,(looseleaf), para 12:4340. The authors
write:
Generally speaking, in the absence of
express of necessarily implied statutory authority, a tribunal with a duty to
adjudicate cannot … normally delegate responsibility to conduct the hearing or
any part of it.
[31]
The
respondent relies on Baker and submits that having regard to the
interests at stake, the nature of the issue, the type of decision making, and
the nature of the decision-maker, the procedural fairness requirements
attaching to the grievance process are at the low end of the spectrum. The respondent
also quotes from Brown & Evans:
The court will show some deference to the
agency’s choice [of procedure]. (…) It will be more difficult to satisfy a
court that oral hearings should be held by (…) a departmental official before
exercising a statutory power to which the duty of fairness or the principles of
fundamental justice apply, than in the use of decision making by an independent
administrative tribunal.
[32]
Both
parties have proceeded on the basis that a public law duty of fairness applies
to the grievance process. Their dispute relates to its intensity not its
existence.
[33]
I
pause to note that in Dunsmuir, a unanimous Supreme Court overruled its
own jurisprudence and held that a public sector employee cannot invoke a public
law duty of fairness in the context of a dismissal decision, where the
employment relationship is contractual in nature. The Court wrote at para 113:
“a public authority which dismisses an employee pursuant to a contract of
employment should not be subject to any additional public law duty of
fairness.” It this is so, it might be asked why a public law duty of fairness would
attach to a public authority’s decision on an employment dispute
resulting in something less than a dismissal, as is the case here.
[34]
In
my view, there are indeed good reasons to consider that a public law duty of
fairness attaches to the PSLRA grievance process. Firstly, there is
established jurisprudence. In Chong v. Canada (Treasury
Board), (1999),
170 D.L.R. (4th) 641, a classification grievance case arising
under the PSSRA, the Federal Court of Appeal wrote, at para. 12, that “[t]here
is clearly a dispute between parties which the grievance process seeks to
resolve and the duty of fairness clearly applies to that process”
(emphasis added). Secondly, the PSLRA’s procedural provisions governing
non-adjudicable grievances are so skeletal that they cannot be viewed as
providing statutory procedural protections of any substance, whereas employment
contracts and private law are both sources of procedural protections relating
to dismissal. Thirdly, where employees have no access to third-party
adjudication, it is particularly significant that “questions of procedural
fairness can be addressed as of right on judicial review of the
decision-maker’s decision,” as Justice Sexton observed in Vaughan v.
Canada in 2003 FCA 76. Finally, there are strong indications in Dunsmuir
itself that its finding should not be extended beyond the “specific
context of dismissal from public employment.”
[35]
For
these reasons, I am of the view that the grievors were entitled to some degree
of procedural fairness, and that this entitlement arose out of the public law. I
am also of the view that the intensity of the obligation was at the low end of
the spectrum, as has been established in the classification grievance cases.
In this case, the grievances were apparently dealt with on a somewhat ad hoc
basis, in that they went directly to the final level, by agreement. In his
affidavit filed in this proceeding, the decision-maker, Paul Burkholder,
attests “that the established grievance consultation / hearing process was
followed.” The process followed provided the grievors with a full opportunity
to make their case and indeed, on the record before the Court, their
presentation to the labour relations advisors was accurately summarized in the Final
Level Grievance Précis. Further, a duty to conduct an in-person hearing
does not arise out of any provisions in the PSLRA and the applicants did not
point the Court to any other policy documents that so provide. In these
circumstances, I reject the applicants’ contention that the decision-maker was
under an obligation to attend in-person at the grievors’ presentation.
[36]
With
respect to the requirement to provide reasons and the sufficiency thereof, the
applicants submit that Mr. Burkholder’s reasons failed to address or even
acknowledge the arguments they advanced at their presentation. They rely on Via
Rail, a case in which the Federal Court of Appeal held that “the obligation
to provide adequate reasons is not satisfied by merely reciting the submissions
and evidence of the parties and stating a conclusion.” The respondent submits
that although Paul Burkholder did in fact provide reasons, procedural fairness
did not require that he do so, and that therefore, the reasons were not inadequate.
[37]
Whether
or not reasons were required is somewhat hypothetical in that reasons were in fact
given. In any event, whether or not they are required, they presumably reflect
the basis of the decision, and that is what the Court is concerned with on
judicial review. I would also note that if indeed the respondent is correct
that decision-makers are not required to provide reasons in relation to
non-adjudicable grievances under the PSLRA, practically speaking, in all but
the most exceptional case it would be difficult for a reviewing court to
conclude that a decision is reasonable in the absence of reasons.
[38]
In
this case, the decision-maker did more than simply state a conclusion. In my view,
his reasons are not merely pro forma and they explain why the grievances
were dismissed. They are therefore amenable to a substantive review for
reasonableness, and accordingly, the Court would not be justified in rejecting
them summarily for inadequacy.
Reasonableness of the Decision
[39]
Having
found that this application cannot succeed on either of the procedural fairness
grounds raised by the applicants, I turn to the merits of the decision and
whether or not it can be characterized as reasonable, in accordance with the
applicable standard of review. In this portion of the judgment, I give no
weight to the affidavit evidence of the decision-maker, Paul Burkholder,
concerning the basis for his decision. On this point I am in agreement with
Justice Luc Martineau’s observation in Lalonde v. Canada (Revenue
Agency), 2008
FC 183, that “authorizing decision-makers to supplement their reasons after the
fact through affidavits is not at all conducive to the transparency of the
decision-making process.”
[40]
In
conducting a review for reasonableness the Court looks for intelligibility,
transparency, and justification in the decision-making process: Dunsmuir, at
para. 47. I am also mindful of Justice Fichaud’s cautionary observation in Casino
Nova Scotia v. Nova Scotia (Labour Relations Board), 2009 NSCA 4,
that “‘intelligibility’ and ‘justification’ are not correctness stowaways
crouching in the reasonableness standard.”
[41]
In
this case, the impugned decision is indeed intelligible insofar as the
decision-maker proceeded on the basis that “the manner in which CBSA
was created represented a unique situation that was not contemplated in
existing human resources policy” (emphasis added). The statement indicates
a finding that none of the Treasury Board policies relied upon by the grievors
had any application. In light of this, I cannot agree with the applicants’
submission that the decision-maker failed to consider the Terms and Conditions of
Employment Policy and
the Regulations Respecting Pay on Reclassification or Conversion. He
considered them and concluded they didn’t contemplate the situation before him;
that is why he didn’t apply them. Such a determination falls squarely within
the decision-maker’s expertise.
[42]
Moreover,
I am of the view that the
conclusion is defensible in terms of the facts and the law. As the parties
observed, Treasury Board’s Terms and Conditions of Employment Policy
contains a provision providing that “… an employee is entitled to be paid, for
services rendered, the appropriate rate of pay in the relevant collective
agreement.” The policy further defines ‘relevant collective agreement’ as the
collective agreement for the bargaining unit to which the employee is assigned
or would be assigned were the employee not excluded. The respondent submits
that where the bargaining unit to which the grievors would have been assigned (the
MG Group) has never bargained with or contracted with the employer (the
Treasury Board), there was no ‘relevant collective agreement’. According to
the respondent, “[i]t could not have been the intent of this policy that terms
and conditions set in the collective agreement of a separate employer (with a
different classification scheme and different rates of pay) would determine the
rates of pay of Treasury Board employees.” This reading of the policy is
certainly reasonable and, in my view, correct.
[43]
Similarly,
the respondent submits that Treasury Board’s Regulations respecting pay on
reclassification or conversion must be read in light of the definitions of
‘reclassification’ and ‘conversion’ in Treasury Board’s Glossary of Terms
and Definitions. In the glossary, ‘conversion’ refers to the introduction,
for an established group, of a new group and/or level or a new classification
plan and/or structure. ‘Reclassification’ means the change in group and/or
level of a position or positions resulting from a review or audit. The
respondent submits, and I agree, that these definitions do not embrace the
grievors’ situation. Again, this is a reasonable interpretation of the policy.
[44]
Lastly,
I do not agree with the applicants’ submission regarding the decision-maker’s
failure to consider and apply section 37.3 of the Public Service Employment
Act, which deals with the status of employees subject to a block transfer. Contrary
to the applicants’ suggestion in their memorandum, there is no evidence that an
argument grounded on that provision was raised by the grievors at any stage
prior to these proceedings. The decision-maker cannot be faulted for not
considering a ground which was not before him. See: Regional Cablesystems
Inc. v. Wygan, [2003] F.C.T. 321, (2003), 47 Admin L.R. (3d) 151.
[45]
In
light of the above, I find that the decision was reasonable and should not be
interfered with.
[46]
At
the hearing counsel for both parties agreed that the following persons were to
be removed as applicants: Mark Claveau, Terry Lubinski, Jeff McMenemy, Jeff
Walters, Elizabeth Warren and Tim Ziola. In light of the parties’ agreement,
that Order shall issue.
[47]
Both
parties asked for costs if they were successful. As the respondent was
successful, it is entitled to its costs.
ORDER
THIS COURT ORDERS that:
1. The
style of cause shall be amended to remove Mark Claveau, Terry Lubinski, Jeff McMenemy,
Jeff Walters, Elizabeth Warren and Tim Ziola as applicants; and
2. This application for judicial review is dismissed,
with costs.
“Russel
W. Zinn”
Email this Content