BACKGROUND
[2]
Warren
Peck was the Asset Manager for the Mainland Nova Scotia Field Unit (the
“MNSFU”) for Parks Canada from April 1, 2005 until his retirement on June 2,
2007. Mr. Peck held the same position from April 1, 1997 to March 31, 2005, pursuant
to two secondment agreements between Mr. Peck’s employer, Public Works and
Government Services Canada (“PWGSC”), and Parks Canada. The general description
of Mr. Peck’s position is set out in the two memorandums of agreement dated
April 2, 1997 and March 17, 2003. They state as follows:
To provide resident
professional expertise to the Field Unit for the life cycle management of all
heritage and contemporary assets. This will include the provision of
professional and technical advice and guidance to the other managers in the
Field Unit, project management expertise in the delivery of the capital
program, and asset management expertise in the operation and maintenance of
facilities throughout the Field Unit. The Asset Manager will be a member of a
Field Unit management team, and will report to the Field Unit superintendent
for the day to day work assignments.
[3]
During
the period of April 1, 1997 to March 31, 2005, Parks Canada had no authority or
responsibility for setting the terms and conditions of employment for the
applicant, including classification and the content of his job description.
This authority lied with Treasury Board, as the applicant was formally an
employee of PWGSC. This is confirmed by both memorandums of agreement, which
read in part:
The purpose of this memorandum
of agreement is to provide the framework for the assignment of a PWGSC Project
Manager to the Parks Canada Mainland Nova Scotia Field Unit…
General Conditions:
1. The assigned Asset Manager
will continue to be a PWGSC employee, reporting to the Chief-Transportation and
Capital Program for all human resource issues, and for professional direction
relating to technical and contractual issues…
2. All payroll costs will
continue to be the responsibility of PWGC, subject to the term and condition of
the Memorandum of Understanding between Parks Canada – Canadian Heritage and
PWGSC, and any amendments thereto…
Duties of the Assets Manager
1. Reports to the Parks Canada
Field Unit Manager for all on-going day to day duties associated with the Field
Unit. However, the Asset Manager will report to the Chief Transportation and
Capital Program for human resource issues (i.e. leave, staffing, staff
relations issues, grievances, etc.) because the position rests with PWGSC; and
for professional and technical quality control associated with the work.
[4]
The
applicant had been classified by PWGSC before April 1, 1997, at the EG-07
level. EG is the abbreviation for the Engineering and Scientific Support
occupational group. When he became an employee of Parks Canada on April 1, 2005,
he maintained his classification at the EG-07 level despite the fact that most
other Asset Managers were then classified at the lower AS-05 level.
[5]
On
April 1, 1999, Parks Canada became a separate agency as that term is used in s.
2 of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“PSLRA”),
and as identified in Schedule V of the Financial Administration Act,
R.S. c. F-10 (“FAA”). As a result, the employer for employees of Parks
Canada was no longer Treasury Board, but Parks Canada itself.
[6]
When
Parks Canada became a separate agency, it promised its employees to review job
descriptions and classifications to ensure that classifications were correct
and fair through a project called the National Review. Any employee that
received a higher classification as a result of the National Review would have
their salary increased to the higher level of the new classification
retroactive to April 1, 1997.
[7]
Historically,
Parks Canada relied on PWGSC to provide engineering and architectural expertise
and to supervise major building projects. Parks Canada decided to improve its
capacity to be a technically informed client and to supervise major building
projects. A key component of this decision was that Asset Managers would have
to become more knowledgeable of these areas. The decision was made to hire
professional engineers, who were deemed to be more knowledgeable and skilled.
Parks Canada’s position was that, by having an engineering degree, Asset
Managers would contribute more to the job, would be in a better position to
assess what was being suggested by experts and, could be entrusted with greater
authority in the planning and managing of larger projects.
[8]
Not
only was the decision made to hire professional engineers in all future
vacancies, but also to appoint incumbent Asset Managers who had an engineering
degree to the PM group (Program Management) in order to combine their professional
expertise with managerial responsibilities. This is the group in which most
senior manager positions are classified. Only one person was retroactively
reclassified to the PM group, and this person held an engineering degree.
[9]
Other
employees who did not hold an engineering degree were retroactively
reclassified from the AS-05 level to the higher EG-07 level. Since the
applicant came to Parks Canada on assignment from PWGSC as an EG-07 and
retained his EG-07 classification at Parks Canada, he did not receive an
increase in level. In effect, he was treated like all other Asset Managers who
did not have an engineering degree.
[10]
The
applicant challenged both the content of his job description and his
classification level in his grievance dated April 18, 2006. His grievance at
the final level was denied on April 2, 2007, by Mr. Latreille, Final Level
Delegate to the Chief Executive Officer of Parks Canada. This is the decision
that is the subject matter of the within application for judicial review.
THE IMPUGNED DECISION
[11]
Mr.
Peck grieved his classification decision in the following terms:
The National Classification Review
process has chosen a Master Generic Work Description (Asset Operations Manager,
EG-07) that does not reflect the work profile and core activities that exist
within the Asset Manager position for the MNSFU. The description does not
reflect the O&M and the Capital Program’s architectural and engineering
challenges and degree of complexity inherent in the existing Asset Management
position.
[12]
The
essence of Mr. Peck’s grievance was that he had been doing the job described in
the PM-06 job description since 1997 at a “superior” level and, accordingly,
should receive the PM-06 classification.
[13]
Mr.
Peck submitted a written memorandum in support of his grievance. In addition, both
Mr. Peck’s immediate and former supervisors were strongly of the view that the
core activities of the Asset Manager position within the MNSFU meet or exceed
the core activities described in the PM-06 job description. Mr. Peck’s
supervisors also expressed their opinion that the lack of an engineering or
architectural degree would not impede Mr. Peck from satisfying the
responsibilities of the PM-06 position.
[14]
Mr.
Latreille interviewed Mr. Peck, as well as his past and present immediate
supervisors, but denied Mr. Peck’s grievance. In his letter of April 2, 2007,
Mr. Latreille first noted that management has “quite a bit of leeway in
applying classification standards and setting qualification requirements for
appointment”. He then summarized briefly the process whereby the job
description of asset managers were transformed, and could not find fault with
this process “as it is purely a management right to do so and your job rights
were fully protected”.
[15]
Addressing
more specifically the grievances of the applicant, Mr. Latreille then wrote:
Now I come to the critical
issue of selecting the appropriate classification group for the new asset
manager position: EG, ENG or PM. It is uncommon in the public service to have
full-fledged professional engineering functions classified EG. This left only
the ENG or PM groups to select from for the new ‘forward looking’ job
descriptions. ENG is a group for which inclusion criteria is very specific
while PM is a more generalist group where we find many types of senior
management positions requiring a wide variety of qualifications. Throughout
the public service, the PM group has been widely used to mix professional
technical knowledge with senior management skills. Parks Canada cannot be
faulted for following this path even though this particular combination may not
have been common previously in the Agency. The Agency argues it also serves to
reinforce equity at the local management table when most senior managers are at
the same classification level or in the same classification group.
The final point regarding the
PM level is that Parks Canada is firm in its refusal to appoint you as a PM
senior manager because you do not have engineering degree. Having found that
the requirement for engineering degree is not unreasonable and within the right
of senior management to impose, I cannot overturn the decision to not appoint
you to the PM-6 level. This requirement for appointment is no different than
many others imposed by the Agency in many circumstances and indeed it would be
no different if the Agency had chosen to reclassify the position to ENG and for
the same reasons denied your appointment. Let’s not forget this new concept
was intended to be ‘forward looking’.
This now brings me to consider
the classification level and generic description you were given to reflect the
work you have been doing until now, which is EG-07 Asset Operations Manager. I
carefully examined the nature of your work, the scope of your mandate your
managerial responsibilities, as well as the value of the assets (historical
sites, infrastructures-building and such), in order to determine which elements
were to be considered in the analysis and evaluation of the main trust of the
work being performed. I find the generic job description fairly describes in
generic terms your work and responsibilities. The evaluation summary further
complements the description and the two together present a reasonable global
picture of your duties. (…)
Having reviewed the EG
classification standard, I conclude that the point rating and result of EG-7
are appropriate and consistent with the EG point rating standard.
ISSUES
[16]
Mr.
Peck argues essentially that he has not been treated fairly, because he did not
receive the PM-06 classification despite the fact that he demonstrated the
ability to do the job through 10 years of superior performance, and because he
has received the same classification as the other 22 Asset Managers even though
his job had a higher degree of responsibility and complexity. Accordingly, the
issue to be decided on this application for judicial review is whether the decision
made by Mr. Latreille is reviewable, on the basis of the appropriate standard
of judicial review to be applied to such a decision.
ANALYSIS
[17]
To
determine the appropriate standard of review, courts must first ascertain
whether the standard of review for this particular kind of question has already
been determined
by the jurisprudence: Dunsmuir v. New
Brunswick,
2008 SCC 9, at para. 62. While I have not been referred to any cases dealing
with the standard of review to be applied to final level classification
decision made pursuant to the PSLRA (Public Service Labour Relations
Act), the dominant view was that same decisions under the predecessor
statute (Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA))
were reviewable against the standard of patent reasonableness: see, for ex., Trépanier
v. Canada (A.G.), 2004 FC 1326; Adamidis v. Canada (Treasury
Board), 2006 FC 243; Utovac v. Canada (Treasury Board), 2006
FC 643; Julien v. Canada (A.G.), 2008 FC 115; Cox v. Canada
(A.G.), 2008 FC 596. The grieving procedure under the new PSLRA
being quite similar to that found in the PSSRA, and the privative clause
in the two statutes being identical (it was s. 96(3) in the PSSRA and it
is now s. 214
in
the PSLRA), the same standard of review should apply to both. Of
course, the patent unreasonableness standard and the reasonableness simpliciter
standard have been merged into a single standard of reasonableness as a result
of the decision reached by the Supreme Court in Dunsmuir, and that must
be taken into account.
[18]
In
any event, it is clear from a contextual analysis of the factors relevant to
the determination of the proper degree of deference that the appropriate
standard of review is that of reasonableness.
[19]
As
already mentioned, the PSRLA contains a strong privative clause (s. 214)
which militates in favour of great judicial restraint.
[20]
The
PSLRA is a polycentric legislation intended to resolve questions
“involving contradictory policy objectives or the interests of different
groups” and is not merely an adversarial forum to resolve disputes between two
parties: Trépanier v. Canada (A.G.), supra,
at para. 23. In that respect, labour conflicts within the public service differ
from similar conflicts in the private sector. As noted by this Court in Ryan
v. Canada (A.G.), 2005 FC 65, at para. 15: “The resolution of public
service disputes, thus by their very nature, are polycentric rather than
bi-polar and warrant a greater degree of deference”. This factor also
militates in favour of a more deferential standard of review.
[21]
The
question at issue before the final level decision maker was one of mixed fact
and law. It involves an understanding of Parks Canada’s scheme of
classification and appointment, which is a discrete regime involving the
interplay of policies and procedures as well as a comprehensive understanding
of the underlying principles. The nature of the question dovetails into the
expertise held by the decision maker in this case. This factor militates in
favour of a more deferential approach.
[22]
The
affidavit of Mr. Latreille demonstrates his expertise in this area. He has
been in the area of classification and appointment for many years, and is in
the best position to understand the policies and underlying principles involved
in classification standards and the application of those standards to the
particular facts at issue in the case at hand.
[23]
For
all of these reasons, the appropriate standard of review is that of
reasonableness. The applicant has not taken issue with the application
of the reasonableness standard. Such a standard will be satisfied if the
decision is supported by any reasons that can stand up to a somewhat probing
examination: Canada (Director of Investigations and Research) v. Southam
Inc., [1997] 1 S.C.R. 748, at para. 57. See also Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 55.
[24]
A
clear distinction must be made between a standard of correctness and
reasonableness. When deciding whether a decision is unreasonable, a reviewing
court should not ask itself what the correct decision may be or should be. As
pointed out by the Court in Ryan (at paras. 50-51), there will often be no
single right answer in a matter subject to review and a standard of
reasonableness permits deference to be accorded
[25]
It
is not sufficient to put forward to the Court an alternate approach which could
also be described as reasonable. The very nature of a standard of
reasonableness encompasses many approaches which could each be described as
reasonable.
[26]
An
applicant, therefore, has a clear burden to establish before a reviewing court
that the decision in question could not withstand a somewhat probing
examination.
Whether the approach advanced by the applicant is also reasonable or not is
irrelevant to the Court’s task.
[27]
Turning
now to the merit of this application, a few preliminary remarks are in order.
First of all, I agree with the respondent that during the period of April 1,
1997 to March 31, 2005, Parks Canada had no authority or responsibility for
setting the terms and conditions of employment for the applicant, including
classification and the content of job description. During that period, such
authority rested with Treasury Board, as represented by PWGSC. This point was
confirmed in the two Memoranda of Agreement between PWGSC and Parks Canada,
which brought the applicant to Parks Canada on assignment and to which I have
already referred at para. 3 of these reasons. As a result, any grievance the
applicant may have for any period of time prior to his becoming an employee of
Parks Canada is with the Treasury Board.
[28]
Quite
apart from the Memoranda of Agreement which set out the respective
responsibilities of PWGSC and Parks Canada, the latter is clearly a separate
entity since April 1, 1999. The PSLRA defines Parks Canada as a
separate employer from Treasury Board (see PSLRA, s. 2, def. of
“employer”, and Schedule V of the FAA). Likewise, the Parks Canada
Agency Act, S.C. 1998, c. 31 (“PCAA”) states that ss. 11.1(1) and
12(2) of the FAA, which sets out the powers of the Treasury Board and of
the deputy heads with respect to human resources management, do not apply to
the Agency (PCAA, s. 13(3)). The Act specifically grants the Agency
exclusive authority to act as employer independent of the Treasury Board.
[29]
This
has been confirmed recently in an adjudication decision under s. 209 of the PSLRA.
In Hillarie Zimmermann v. Treasury Board (D.I.A.N.D.), 2008 PSLRB
87, the adjudicator confirmed that Parks Canada is a separate employer,
rejecting the griever’s argument that she was employer by the “federal
government”. As a result, the Agency’s authority to respond to the applicant’s
grievance is limited to the period for which he was an employee of the Parks
Canada Agency.
[30]
Second,
it is beyond dispute that Mr. Peck continuously performed his job at a high
level, as evidenced by his very positive performance reviews from 1997 to
2006. This is acknowledged by Parks Canada. In his cross-examination, Mr.
Latreille states that “Mr. Peck demonstrated a very high level of skill, and
knowledge and expertise” and agreed that Mr. Peck’s performance reviews were
“superior” and “speaks to a very high level of competency”.
[31]
The
only reason Mr. Peck was denied the PM-06 classification was because he did not
hold an engineering degree, as is made clear in the decision of Mr. Latreille.
Mr. Peck does not deny that that Parks Canada could set the qualifications
required for a particular job, nor that it could request an engineering degree
for the PM-06 position. What he takes issue with is the decision to deny him
that classification without considering his 27 years of experience and the fact
that he performed the duties of the PM-06 position at a superior level while
working in a position classified as EG-07. In other words, he does not object
to the right of Parks Canada to set qualifications for the future, but he
submits that due consideration should have been given to the opinions of his
superiors that he was qualified for the job through work experience, and that
no comparison was made between what he actually did and the PM-06 description
(and, for that matter, between his job and that of the other 23 Asset
Managers). In his view, it was unfair and contrary to the similar pay for
similar work principle to classify and compensate differently two individuals
who performed the same job, on the basis of a retroactive qualification (i.e.
the requirement of an engineering degree).
[32]
While
the Court understands Mr. Peck’s frustration at having been treated differently
because he did not hold an engineering degree, it can find no basis in law to
quash Mr. Latreille’s decision. Just like the Treasury Board in relation to
the employees of the public service, Parks Canada’s authority over terms and
conditions of employment is broadly defined and certainly includes the
untrammelled power to classify positions. Section 13 of the PCAA provides:
Personnel
13. (1) The Chief Executive
Officer has exclusive authority to
(a) appoint, lay-off or terminate the employment of the
employees of the Agency; and
(b) establish standards, procedures and processes governing
staffing, including the appointment, lay-off or termination of employment
otherwise than for cause, of employees.
Right of
employer
(2) Nothing in the Public Service
Labour Relations Act shall be construed to affect the right or authority of
the Chief Executive Officer to deal with the matters referred to in paragraph
(1)(b).
Human
resources management
(3) Subsections 11.1(1) and 12(2) of the Financial
Administration Act do not apply with respect to the Agency and the Chief
Executive Officer may
(a) determine the organization of and classify the
positions in the Agency;
(b) set the terms and conditions of employment, including
termination of employment for cause, for employees and assign duties to them;
and
(c) provide for any other matters that the Chief Executive
Officer considers necessary for effective human resources management in the
Agency.
[33]
Parks
Canada’s authority to set terms and conditions of employment, including
classification is unrestricted. As noted by this Court in P.S.A.C. v. Canada (Canadian
Grain Commission), [1986] F.C.J. No. 498, at p. 9, “…the employer
in its management functions may do that which is not specifically or by
inference prohibited by statute”. See also Brescia v. Canada (Treasury
Board),
2005 FCA 236.
[34]
This
unrestricted authority to classify a position contained in s. 7 of the PSLRA,
which reads as follows:
Right of employer
preserved
7. Nothing in this Act is to be construed as affecting the right or
authority of the Treasury Board or a separate agency to determine the
organization of those portions of the federal public administration for which
it represents Her Majesty in right of Canada as employer or to assign duties to
and to classify positions and persons employed in those portions of the federal
public administration.
[35]
The
breadth of the employer’s authority was confirmed by the Federal Court of
Appeal in Brochu v. Canada (Treasury Board), [1992]
F.C.J. No. 1057 (at p. 3). While dealing with Treasury Board as employer, its
principles apply with equal force to Parks Canada:
Responsibility for the
classification of position rests with the Treasury Board and the departments
which it authorizes to exercise such responsibility…Their power to classify
positions includes the power to refuse a classification when the description of
the position does not met the standards or is not consistent with the
organizational structure of the institution.
[36]
Implied
in the power to classify is the power to determine the classification standard
and minimum qualifications for positions. As noted by the British Columbia
Supreme Court in Babcock v. Canada (A.G.), 2005 BCSC 513, at
para. 174:
The FAA authorizes TBC
to unilaterally create terms and conditions of employment, classify positions,
set rates of pay and to administer the salaries of unrepresented or excluded
public service employees.
[37]
While
dealing with the authority of Treasury Board as employer, Babcock
applies equally to Parks Canada as employer. It would appear therefore, that
Parks Canada may do anything within its wide grant of statutory authority as
employer that is not specifically or by inference restricted by statute.
[38]
The
applicant has relied on a number of cases which, in his view, stand for the proposition
that work experience on the job is relevant to whether a person is qualified
for the job and that a person should not be found to be unqualified for a job
solely because the person does not hold a formal qualification established by
the employer: see, for ex., IMP Group Limited v. Local 2215
(2002), 205 N.S.R.(2d) 179; Montreal Children’s Hospital v. Federation
of United Nurses Union, local 220 (1974), 8 L.A.C.(2d) 17;
Sunbeam Home v. London and District Service Workers Employees’ Union,
local 368 (1977), 14 L.A.C. (2d) 350.
[39]
These
cases, however, can be easily distinguished. First of all, they all relate to
private sector arbitral jurisprudence. In none of these cases was there an
employer exercising statutory authority to establish terms and conditions of
employment. Contrary to the situation of a private employer bound by a
collective agreement, Parks Canada may in its management function do that which
it is not specifically or by inference prohibited by statute. As already
mentioned, there is no limitation on Parks Canada’s authority over
classification. In requiring an engineering degree and engineering
certification for the Asset Manager III (Engineer) position, Parks Canada was
exercising its wide grant of managerial authority as a separate employer.
[40]
Moreover,
none of these cases dealt with professional qualifications. Parks Canada
contends that holding an engineering degree allows one to “bring more to the
job”. As difficult as such an assessment of qualifications may be, it is certainly
not an unreasonable assumption that the job experience does not equate to
professional competence derived from a university degree and membership in a
self-regulated body with all its attendant certification and ongoing education
requirements. Finally, the collective agreements pursuant to which the disputes
arose in these cases all contain a clause to the effect that past experience
would be considered, or that a specific qualification was preferred. There is
none of that language in the job description at issue here.
[41]
In
any event, the authority of Parks Canada to require an engineering degree for
the PM-06 classification is not disputed by the applicant. What is challenged
is the authority to impose that requirement retroactively. Yet, once it is
accepted that Parks Canada has the authority to impose that requirement for the
future, there is simply no basis to deny that same authority on a retroactive
basis.
[42]
Finally,
the applicant tries to rely on the “equal pay for equal work” principle to bolster
his case. Unfortunately for Mr. Peck, there is no free-standing right to pay
equity, and there is no legal foundation for his assertion that it is
applicable to the case at hand. The fact that an internal memorandum found on
the Intranet site of Parks Canada providing a status report on the National
Review process states that the “goal is to ensure employees who perform similar
work receive similar compensation regardless of where they work” is not
sufficient to incorporate the “equal pay for equal work” principle into the
legislation. That policy is framed as a goal, and it clearly was not meant to
fetter Parks Canada’s legislative authority. In any event, Parks Canada takes
the position that the work performed by non-engineers is not equal to the work
performed by engineers. As I previously indicated, this position does not
strike me as being unreasonable.
[43]
The
closest related concept is that of acting pay, i.e. where an employee claims to
have substantially performed work not of his or her group and level but of a
higher group and level. However, the applicant did not grieve acting pay;
indeed, the record does not contain any collective agreement provisions or
policies providing for acting pay. It is trite law that an applicant cannot
raise an issue for the first time on judicial review.
[44]
Furthermore,
there is no contract or policy on the record that would support an argument for
acting pay (whether characterized as “equal pay for equal work” or otherwise).
This Court has confirmed that such a requirement must be specifically located
in a collective agreement or employer policy. In any event, it is well
established that when an employee is performing the duties of their position
but grieves that the same duties are classified at a higher level in other
positions, the grievance is not an acting pay grievance but a classification
grievance (see, for ex., Gvildys v. Treasury Board (Health Canada),
2002 PSSRB 86.
[45]
For
all the foregoing reasons, I therefore come to the conclusion that this
application for judicial review ought to be dismissed, with costs in favour of
the respondent.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed, with costs.
"Yves
de Montigny"
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