Date: 20110429
Docket: T-615-10
Citation: 2011
FC 503
Ottawa, Ontario, April 29, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
HARJINDER JOHAL and
THOMAS STASIEWSKI
Applicants
And
CANADA REVENUE AGENCY and
CHRISTINA MAO
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to section 18.1 of the Federal Courts Act,
RSC 1985, c F-7, for judicial review of a final level decision by Cheryl
Fraser, Assistant Commissioner Human Resources Branch of the Canada Revenue
Agency (the decision), dated March 16, 2010, which denied the applicants’
grievance challenging the appointment without competition of Christina Mao as a
technical team leader (MG-05) at the Burnaby-Fraser Tax Services Office.
[2]
The
applicants request:
1. That the decision be
set aside and the matter referred back to a different final level grievance
decision maker for reconsideration; and
2. Costs on a solicitor
and client basis.
Background
[3]
Christina
Mao was employed by the Canada Revenue Agency (CRA) at the Burnaby-Fraser Tax
Services Office (BFTSO). She commenced a one year leave of absence in May 2000
pursuant to Article 17.11 of the governing collective agreement of the
Professional Institute of the Public Service of Canada (PIPSC). This absence
was to pursue full time employment with the Investment Dealers Association.
[4]
Immediately
following this leave, Ms. Mao commenced a five year leave of absence without
pay pursuant to Article 17.14 of the collective agreement, “Leave without Pay
for Family-Related Needs”. This leave was for the purpose of personal long term
care of the employee’s family.
[5]
During
her six year leave, Ms. Mao’s position as investigator/auditor, AU-03, was
converted to a management group, MG-05, team leader position.
[6]
Ms.
Mao returned to a term position with the CRA in September 2006 as an AU-03. In
May 2007, Ms. Mao was placed without competition in an MG-05 team leader
position at BFTSO.
[7]
At
the time that the CRA placed Ms. Mao in the MG-05 position, the CRA cancelled
the three month acting assignment of Harjinder Johal (the principal
applicant).
[8]
Thomas
Stasiewski (the applicant), who was co-chair of the audit, financial and
scientific sub-group at the BFTSO from April 2006 to April 2008, inquired on
behalf of Mr. Johal into why this acting assignment was cancelled and was
informed that Ms. Mao was being treated as a preferred status employee.
[9]
Mr.
Stasiewski filed a grievance challenging the decision of the CRA to grant Ms.
Mao preferred status when he learned that Ms. Mao had continued her full time
employment with the Investment Dealers Association throughout the duration of
her five year leave of absence for the personal long term care of her family.
Mr. Stasiewski claimed that the placement of Ms. Mao in the position without
competition unfairly restricted his opportunities for promotion and violated
the CRA staffing principles of fairness and transparency.
[10]
Mr.
Johal also filed a grievance in relation to Ms. Mao’s appointment and the
granting to her of preferred status. Both grievances were heard together at all
levels of the grievance procedure.
[11]
The
grievances went through five levels of the grievance procedure and were denied
at each level. The applicants initiated a judicial review of the final
grievance which was allowed in Johal et al v Canada Revenue Agency, 2009
FCA 276 and sent back to the final level of the grievance process for
redetermination
[12]
This
case is a judicial review of the redetermination.
Assistant Commissioner’s
Decision
[13]
In
an internal memorandum from Claude Tremblay, the director general of workplace
relations and compensation directorate to Cheryl Fraser (the assistant commissioner),
the director stated that any reply which indicated that “Ms. Mao was on
approved leave and was therefore entitled to preferred status… would not
address the Federal Court of Appeal’s concerns that Ms. Mao flagrantly abused
the leave.” Despite this, the memorandum recommended that the assistant
commissioner adopt this approach.
[14]
The
assistant commissioner found that Ms. Mao was entitled to preferred status,
pursuant to the Preferred Status Directive at the conclusion of her
approved leave. Ms. Mao was entitled to be appointed to the position in
question as a result of her preferred status.
[15]
The
assistant commissioner also found that there was a need to re-examine the Preferred
Status Directive as it pertains to recourse and possibly make changes. As
such, she allowed the grievance in part.
Issues
[16]
The
applicants submitted the following issues for consideration:
1. Did the Canada
Revenue Agency commit a reviewable error in denying the challenge to Ms. Mao’s
preferred status?
2. Are costs warranted
against the CRA on a solicitor and client basis?
Applicants’ Written
Submissions
[17]
The
applicants submit that Ms. Mao flagrantly breached the terms of her leave in
contravention of article 2.6.1 of the Directive on Preferred Status, as
was held by the Federal Court of Appeal in Johal above, at paragraph 43.
[18]
Article
2.6.1 of the Directive on Preferred Status states that:
Employees on leave may occupy another
position temporarily within the Agency on the condition that it is not
inconsistent with the type of leave granted (dual employment). For example, an
employee who is taking leave for the care and nurturing of children should not
occupy another position. If that employee chooses to occupy another position,
the leave should be terminated.
[19]
The
applicants submit that based on this abuse of her leave, Ms. Mao should not
have been granted preferred status. Granting her preferred status violated the
CRA’s staffing principles of fairness and transparency.
[20]
The
applicants submit that the CRA’s redetermination of the grievance is
contemptuous of the Federal Court of Appeal’s decision in Johal above.
The CRA failed to address the Court of Appeal’s concerns and its decision was
wholly conclusory, making no mention of Ms. Mao’s use of family related leave
for a different purpose. The decision was not justified, transparent or
intelligible and should be judicially reviewed.
[21]
Based
on the above, the applicants submit that costs should be awarded on a solicitor
client basis. The CRA acted in bad faith in deliberately flouting the Court of
Appeal’s decision and intentionally repeating the fundamental mistakes made in
the first grievance. This conduct is reprehensible, scandalous and outrageous
and warrants costs to be awarded to the applicant.
Respondents’ Written Submissions
[22]
Neither
responding party submitted responding materials.
[23]
Counsel
for the respondent CRA indicated in a letter dated August 3, 2010 to this Court
that:
The Applicants and Canada
Revenue Agency (CRA) are attempting to settle this Application for judicial review.
If we cannot reach a
settlement, it is CRA’s position that the decisions of the CRA dated March 16,
2010, should be set aside and reconsidered by another decision-maker within CRA
pursuant to Section 18.1(3)(b) of the Federal Courts Act. CRA agrees
that the Applicants should be granted the relief requested at paragraph 2 of
the Notice of Application (Please see Application Record, Notice of
Application, Tab 1, page 4, para 2). We are willing to pay the Applicants’ costs
associated with this Application in the fixed amount of $2000.
[24]
This was followed by a letter
to this Court from counsel for the CRA dated October 25, 2010 which stated that:
The parties are still in
negotiations to settle this application.
The Respondent is of the view
that this application should be re-determined pursuant to Section 18.1(3) of
the Federal Courts Act.
[25]
Christina Mao filed a notice of
appearance on April 29, 2009 but submitted no further documentation. She did
not attend the hearing.
Analysis and Decision
[26]
As
neither responding party has made submissions defending the decision of the
assistant commissioner and the CRA explicitly stated that it was willing to
settle with the applicants, the judicial review must be allowed.
[27]
Both
parties made submissions with respect to costs. The applicants seek costs on a
solicitor and client basis while the respondents are prepared to pay costs to
the applicant according to Tariff B Column 3. I have considered the submissions
of the parties and I do not believe that an award of costs on a solicitor and
client basis is justified in this case. The conduct of the respondents did not
reach the level of being reprehensible, scandalous or outrageous. I am of the
view, however, that based on the facts of this case, the applicants should be
awarded costs according to the high end of Tariff B Column IV.
JUDGMENT
[28]
IT IS
ORDERED that:
1. The application for judicial review is
allowed, the decision of the final level of the grievance process is set aside
and the matter is referred back to a different final level grievance decision
maker for reconsideration.
2. The applicants shall have their costs
of the application to be assessed at the high end of Tariff B Column IV.
“John
A. O’Keefe”
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