Date:
20071218
Docket:
T-685-07
Citation: 2007
FC 1333
Ottawa, Ontario, the 18th day of December 2007
PRESENT:
THE HONOURABLE MR. JUSTICE ORVILLE FRENETTE
BETWEEN:
PIERRE
GIRARD
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review from a decision of the Office of Dispute
Management (the Office), dated March 20, 2007, denying the applicant access to
an independent third party review (ITPR) after the Canada Revenue Agency (the
Agency) declined to grant him a position. The Office considered that the
desired position was a temporary lateral deployment and was thus ineligible for
ITPR under the relevant staffing program.
FACTS
[2]
The Agency was created
pursuant to subsection 4(1) of the Canada Revenue Agency Act, S.C. 1999,
c. 17 (the Act). Section 54 of the Act provides that the Agency may develop a
staffing program governing inter alia the appointment of, and recourses
for, employees.
[3]
Following
creation of this staffing program the Agency also established the Directives
on Recourse for Staffing (the Directives), providing for three recourses
available to employees dissatisfied with decisions made in staffing processes,
namely individual feedback, internal review and ITPR.
[4]
On May 12, 2004 the
Agency sent its employees a notice of interest by e-mail to fill a position in
the Business Valuation Section for a five-year period. The notice of interest
was as follows:
[TRANSLATION]
An additional
position at the AU-02 level in the Business Valuation Section is to be filled.
The position could also be filled by a candidate at the AU-01 level, given the
right level of interest and skills.
It is
important that this position be held by a candidate demonstrating a significant
interest in the business sector. Additionally, as the development of a business
valuator requires a considerable period of training, the successful candidate
will have to agree to devote several years of his or her career to it (five
years).
[…]
[5]
The applicant, who held
a position at the AU-01 group and level, applied for this AU-02 position.
Another employee at the AU-01 group and level was the successful candidate; as
he had not been selected, the applicant was offered individual feedback. He
then initiated an ITPR process by applying in writing to the Agency’s Office
and to the manager who made the disputed decision. The Office then had to
determine whether the conditions for ITPR eligibility had been met before
handing the application over to the independent third party for review.
[6]
On
October 1, 2004 an adviser from the Office informed the applicant in writing
that he could not have an ITPR since this remedy was available only in respect
of an application [TRANSLATION] “during the initial stage of a selection
process or without an internal selection process leading to a permanent
promotion.” Therefore, since the applicant was seeking review of a
temporary lateral deployment, he was not eligible for an ITPR.
[7]
The
applicant then sought judicial review of the decision by the Federal Court. My
colleague Harrington J. allowed the application for judicial review on
September 30, 2005 and referred the matter back to a new adviser of the Office.
He concluded that there had been a lack of procedural fairness since the applicant
had not been given an opportunity to make submissions. Harrington J. did not
have to rule specifically on the question regarding the temporary or permanent
nature of the position, but he did mention in obiter that:
[23] This Court has already
said that its role is not to decide whether a position is temporary or
permanent or to determine the criteria of the competition. However, without
some explanation of the adviser’s reasoning, the Court must rely on the
evidence presented by the parties in determining whether the decision was
patently unreasonable. The Court has great difficulty with the respondent’s
contention that the position was temporary. One cannot rely simply on the
statement that the position is temporary and classify it as such. The actual nature
of the position has to be determined. On account of the fact that the candidate
must devote several years of his career, namely five years, and that the
position had existed long before the posting of the “Notice of Interest”, the
Court is of the view that the position was permanent.
See Girard v. Canada
(Canada Customs and Revenue Agency), 2005 F.C. 1341 [Girard]
[emphasis added]
[8]
Despite
the opinion of Harrington J. as to the nature of the position, the adviser
responsible for reassessing the matter reiterated the initial conclusion of the
Office after giving the applicant an opportunity to make submissions on the
question. At that time, the adviser expressed herself as follows:
[TRANSLATION]
In this case, the staffing
action which was the basis for your ITPR application no. 2004-024s was the
temporary lateral deployment (TLD) of Claudine Tremblay as of September 7,
2004. After reviewing the two statements of fact, I am confident that the
initial staffing action for Claudine Tremblay was a temporary lateral
deployment: for this reason, Mr. Girard’s application is not eligible for
independent third party review.
[9]
The
applicant sought judicial review of this decision, relying primarily on the
refusal by the Office to take the judgment of Harrington J. into account and
asking this Court to rule on whether the position was temporary or permanent.
ISSUES
[10]
This
application for judicial review raises the following issues:
1. What is the applicable
standard of review?
2. Did the Office err in denying
the applicant access to the ITPR procedure and was the decision consistent with
the judgment of Harrington J.?
3. The Office’s actions and their
consequences.
ANALYSIS
(1)
What is applicable standard of review?
[11]
First, the
process of determining the applicable standard of review brings into play the
pragmatic and functional approach whereby the Court is invited to discern
legislative intent by means of the four contextual factors identified by the
Supreme Court. Those factors are the existence of a privative clause or
statutory right of appeal, the expertise of the administrative tribunal
relative to that of the reviewing court, the purposes of the legislation in
general and of the specific provisions and the nature of the question: see Dr.
Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226.
[12]
In the case at bar, I cannot draw any inference from the first
factor since the Act is silent as to the review of Office decisions. It makes
no provision for a right of appeal or judicial review of those decisions and it
contains no privative clause seeking to limit such review.
[13]
Next, the question as to the permanent or temporary nature of the
position depends on the specific facts of each case. Accordingly, the question
is one of the expertise of the Office relative to that of the Federal Court,
but no evidence was provided to me regarding the expertise of the Office
adviser who assessed the ITPR application. However, I am inclined to consider
that the Office is in a better position to assess the circumstances of each
case, especially considering that it is exclusively responsible for ruling on
ITPR eligibility when applications are made.
[14]
As to the purposes of the legislation, the Act does not raise a
general issue of public policy nor involve the weighing of conflicting
interests between various groups. Rather, it involves a process created to
settle employer-employee disputes, and this militates in favour of a lesser
degree of deference.
[15]
The applicant proposed the standard of correctness since the issue
is the interpretation of directives and a factual situation. The respondent
argued that the standard of judicial review should be that of patent
unreasonableness.
[16]
Determining the nature of the desired position is primarily a
question of fact, requiring analysis of the particular circumstances of each
case in the light of the relevant staffing directives. As such, greater curial
deference is required in the review of the disputed decision.
[17]
The respondent argued that the standard of patent unreasonableness
applies to decisions of the Agency’s Office of Dispute Management, which must
regularly rule on the experience of candidates and develop staffing programs.
In the respondent’s submission, the Office has acquired particular expertise on
the subject of the recourses available to employees.
[18]
The applicant argued that subsection 54(1) of the Act states that
the Agency will develop a staffing program governing inter alia
“recourses for employees.” This factor would tend to favour a lesser degree of
deference regarding the classification or nature of the positions in question.
[19]
The parties referred to Anderson v. Canada (Customs and Revenue
Agency), 2003 F.C.T.D. 667, [2003] F.C.J. No. 924. My colleague Dawson J.
had to analyze the standard of review for a decision regarding individual
feedback to a candidate who had applied for a position with the Agency. She
applied the standard of patent unreasonableness. In my view, her opinion is
very sound, since the decision-maker was acting within its specialty as provided
in section 54(1) of the aforesaid Act.
[20]
In the judgment rendered by my colleague Harrington J. concerning
the same parties, Girard v. CCRA (Docket T-1844-04, rendered on
September 30, 2005), he relied on the standard of patent unreasonableness because
he had found that the applicant was the victim of a breach of the rules of
procedural fairness.
[21]
As to the purposes of the legislation, the Act does not raise a
general issue of public policy or involve the weighing of conflicting interests
between various groups. Rather, it involves a process created to settle
employer-employee disputes, and this militates in favour of a lesser degree of
deference.
[22]
The applicant proposed the standard of correctness since the issue
is the interpretation of directives and a factual situation. The respondent
argued that the standard of judicial review should be that of patent
unreasonableness.
[23]
Determining the nature of the desired position is primarily a
question of fact, requiring analysis of the particular circumstances of each
case in the light of the relevant staffing directives. As such, greater curial
deference is required in the review of the disputed decision.
[24]
In the instant case, this standard could be applied when a mixed
question of law and fact was involved, but on a question of fact alone the
standard must be that of reasonableness simpliciter. When the
legislation has to be applied, it is the standard of correctness that must be
used. In Beaulieu v. Canada (Attorney General), 2006 FC 1308, [2006]
F.C.J. No. 1658, my colleague de Montigny J. at paragraph 35 applied the
standard of reasonableness simpliciter even though he described the
decision involving this type of question as one which [TRANSLATION] “ordinarily
requires a degree of deference at the intermediate level of review.” The case
concerned an application for review of a reviewer’s decision regarding an
applicant’s qualifications for a position with the Canada Customs and Revenue
Agency (the CCRA).
(2) Did the Office err in
denying the applicant access to the ITPR procedure and was the decision
consistent with the judgment of Harrington J.?
[25]
Contrary
to the applicant’s assertions, this Court’s role does not involve making a
definitive ruling on the temporary or permanent nature of a position. Nor can I
accept his contention that the adviser failed to comply with Harrington J.’s
finding as to the nature of the position; this was merely an obiter dictum
and was not binding on the Office. However, although the order by Harrington J.
was designed only to correct a breach of procedural fairness, his opinion on
the facts deserved to be respected. While the Office properly allowed the
applicant to present his observations on the subject, they were ignored in the
decision on the merits.
[26]
Accordingly,
it is for this Court to determine whether the Office’s determination was
reasonable. The French version of the Directives make an ITPR available to
employees for selection
process/pre-qualified pool placement decisions for des promotions à des postes permanents, whereas the English version
states that it is available in the case of such decisions for a “permanent
appointment.” As my colleague Harrington J. noted, this ambiguity in the
wording of the two versions must be interpreted in the applicant’s favour. Consequently,
the only condition necessary for being entitled to an ITPR is the permanent
nature of the desired position.
[27]
On its
face, it seems unreasonable to consider a five-year position temporary,
although I do not rule out the possibility of circumstances justifying such a
conclusion.
[28]
Although
the Directives state that “the ODM will inform the parties of the reasons why
an application had not been processed, if applicable”, I do not think that the
duty of the Office goes beyond simply noting that this was “a temporary lateral
deployment; and for this reason, Mr. Girard’s application is not eligible
for review by an independent third party.” The Office is not obliged to write
up reasons for decision.
[29]
As my
colleague Harrington J. pointed out, however, it is difficult to analyze a
decision that does not set forth its reasoning:
[20] To begin with, this Court
is unable to analyse the adviser’s reasoning, since she gave no explanation of
her decision. As was stated in R. v. Sheppard, [2002] 1 S.C.R. 869 (QL),
at paragraph 15:
. . . The
courts frequently say that justice must not only be done but must be seen to be
done, but critics respond that it is difficult to see how justice can be seen
to be done if judges fail to articulate the reasons for their actions. Trial
courts, where the essential findings of fact and drawing of inferences are
done, can only be held properly to account if the reasons for their
adjudication are transparent and accessible to the public and to the appellate
courts.
It is thus impossible for Mr.
Girard or this Court to see how she concluded that the position was temporary.
It is true that offering reasons in writing is not a requirement: however, in
this context, how can the Court be expected to decide that the adviser made the
right decision, or even a reasonable one?
[21] The failure to give an
explanation in support of her reasoning is risky for the adviser as, even if
her decision may not appear reasonable a priori, there is a guideline
which the Court can follow to determine how she reached her decision . . . In
the case at bar, there is no guideline to follow. To determine whether the
decision was reasonable, therefore, the Court must rely on the evidence
presented by the parties. If the evidence points to a result different from
that arrived at by the adviser, it will then be difficult for the Court to
support the latter’s reasoning.
See Girard.
The
existence of reasons thus greatly facilitates this Court’s work of review.
However, absent such reasons, I must assess the evidence submitted by the
parties to the Office in an attempt to find a reasonable justification for its
conclusion.
[30]
The
applicant submitted precedents and a number of documents in support of his
argument that a five-year position is temporary in nature. He further specified
that the notice of interest did in fact mention a five-year duration, not two
years as alleged by his employer.
[31]
Meanwhile,
Andrée Simard, the manager responsible for the position, testified in support
of the Office’s first decision by providing some background on the situation
prevailing at the time of the staffing action. Ms. Simard stated that
Ms. Tremblay’s substantive position was AU-01 and that she had been
deployed from the Audit Division to the Business Valuation Section to hold an auditor
position at the AU-01 level for a two-year period. She specified that this was
a temporary position, since the selected employees could return to their
substantive positions at the end of the deployment.
[32]
It
is difficult if not impossible for the Court to understand how the respondent
can allege that the position was of a two-year duration when the notice of
interest expressly states that, on account of the lengthy training, a
successful candidate would have to devote five years of his or her career to
it.
[33]
Moreover,
the evidence in the record from studies on the subject supported the
applicant’s arguments in this regard.
[34]
My
colleague Harrington J. stated, albeit in obiter dicta, that the
position in question is permanent because the successful candidate had to
devote five years of his or her career to the position, which had existed long
before the notice of interest was posted.
[35]
In view of
the particular circumstances of the case at bar, and especially this comment by
Harrington J., I think the adviser should have provided at least a modicum of
reasons in support of her finding.
(3) Actions
of the Office and their consequences
[36]
The
role of the Agency to establish a staffing program governing inter alia
appointments and recourses available to employees. In carrying out this role,
the Agency, on May 12, 2004, published a notice of interest to fill a
position in the Business Valuation Branch for a period of five years. An
additional position at the AU-02 level was open to candidates at the AU-01
level who were deemed to be qualified. The candidate would have to submit to a
“considerable period of training . . . (five years).”
[37]
The
applicant demanded individual feedback. On July 6, 2004, dissatisfied with the
result, he requested the ITPR process. The response was a long time coming, and
on October 1, 2004, the applicant was informed that his application was
unacceptable because it required [TRANSLATION] “a selection process or
without an internal selection leading to permanent training” (emphasis
added).
[38]
In
a letter to the applicant on September 23, 2004, he was informed that the
staffing process was designed to be a temporary lateral deployment for a
valuation trainee at the AU-01 level.
[39]
On
October 14, 2004 the applicant filed an application for judicial review that
was allowed by Harrington J. on September 30, 2005.
[40]
Following
that judgment, the applicant was able make submissions, but on May 20, 2007, he
was notified by letter that since it was a temporary lateral deployment he was
not eligible for an independent third party review. The evidence was that in
the interval, between 2004 and March 20, 2007, the Agency had made
major changes in this file, namely:
1. the position
offered at the AU-02 level on May 12, 2004 to acceptable candidates at the
AU-02 level had been downgraded to the AU-01 level;
2. the position
offered for five years was reduced from five to two years;
3. the position,
which appeared to offer substantial opportunities for promotion, was downgraded
to a temporary lateral deployment; nevertheless, the candidate selected in
2004, Claudine Tremblay, was promoted from level AU-01 to AU-02 to AU-03 in the
space of three years;
4. the position
was subsequently abolished for lack of funding and to avoid a budget deficit.
[41]
Based on
this series of events, the applicant inferred that the Agency had knowingly
organized the aforementioned changes to sidestep his grievances in response to
him filing complaints and an application for judicial review.
[42]
On
reading the documentation entered in the Court record by the applicant, I saw
an e-mail sent by Frédérick Durso, LL.B., to Janice Link, Director of the
Office of Dispute Management, on January 2, 2007. He noted that Andrée Simard’s
explanations in this matter [TRANSLATION] “are full of obvious contradictions”
and “manipulation of the staffing rules for the sole purpose of avoiding the
appointment of Mr. Girard. From the start of Mr. Girard’s objections . . .”
(page 277 of applicant’s record).
[43]
Frédéric
Durso was described as [TRANSLATION] “labour relations officer for the
Professional Institute of the Public Service of Canada, 1000 rue Sherbrooke
Ouest, Montréal”. Clearly, this opinion does not constitute evidence and is in
no way binding on the Court.
[44]
However,
when we look at the factual situation as a whole, including the documentation
originating with the Agency, it can be readily concluded, as the applicant did,
that there was [TRANSLATION] “something fishy going on” in order to defeat his
recourse procedures.
[45]
Though
only in obiter, my colleague Harrington J. stated that the position in
question was permanent since the successful candidate would have to devote five
years of his or her career to the position, which had existed long before the
notice of interest was posted.
[46]
That
opinion, which I share, is supported by the undisputed empirical evidence that
in Canada between 74% and 81% of all positions are for a duration of less than
five years. There may not be any case law that corresponds exactly to the
factual situation of the case at bar, but the precedents interpreting the
former Public Service Employment Act (while not necessarily conclusive
here) may be useful. In Fixman v. Canada (Attorney General), [1995]
F.C.J. No. 360, my colleague Tremblay-Lamer J. considered that a position which
was the subject of acting appointments over a period of two years ceased to be
acting and that a new position had de facto been created.
[47]
As
such, parallels can be drawn and we can validly infer that a five-year position
should in principle be regarded as a permanent position.
[48]
In
the case before us, after advertising a five-year position, the Agency selected
a candidate and subsequently reduced the duration to two years, with the result
of creating a temporary lateral position and thus infringing the rights of the
applicant in his applications and recourses.
[49]
As
mentioned above, the successful candidate held the position for over two years
and has since attained the AU-03 level.
[50]
The
decision under review did not take the opinion of Harrington J. into account
regarding the nature of the position or its five-year duration. Clearly this
was only an opinion, but the decision-maker could not completely ignore it.
[51]
An
analysis of all the evidence leads inescapably to the conclusion that the
unilateral changes made and measures taken subsequent to candidate selection
were underhanded manoeuvres intended to circumvent the staffing process and
prevent the applicant from obtaining this position. The impugned decision was
thus incorrect and patently unreasonable and must be set aside.
[52]
The
parties did not discuss the question of costs, but counsel for the applicant
requested costs on a solicitor-client basis. The general rule in such matters
is that costs are awarded on a party-and-party basis, and that is the rule that
will be followed here (in accordance with column III, Tariff B; see Reed v.
Canada (Attorney General), 2007 FC 1237, [2007] F.C.J. No. 1591).
[53]
Accordingly,
the application for judicial review must be allowed.
JUDGMENT
FOR THESE REASONS, THE COURT:
1.
allows the
application for judicial review;
2.
sets aside
the May 20, 2007 decision of the Office of Dispute Management regarding the
applicant;
3.
orders
that the matter be referred back to a new reviewer with instructions to select
and forward the matter for independent third party review.
With costs against the
respondent in accordance with Tariff B, column III.
“Orville
Frenette”
Translation
certified true
Stefan
Winfield, reviser
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