Docket: T-1851-09
Citation: 2011
FC 1205
Ottawa, Ontario, October 20, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
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JEFFREY DOUGLAS BROWN
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Public Service
Labour Relations Board (the Board), dated October 14, 2009, to dismiss the
applicant’s grievance on the grounds that it did not have jurisdiction to hear
the grievance, pursuant to section 208(2) of the Public Service Labour
Relations Act, SC 2003, C 23, s 2 (the Act).
FACTS
Background
[2]
The
applicant is an employee of Correctional Service of Canada (the employer). In
2003, he was a correctional officer, and applied for a competition for a Parole
Officer position. He was informed by letter on October 3, 2003, that he had
been found to be an eligible candidate for the WP-4 Parole Officer position,
and that he ranked 11th on the eligibility list.
[3]
The
eligibility list was certified in November, 2003, and expired in October, 2005.
The applicant was not appointed to a position as Parole Officer before the
certified list expired.
[4]
The
applicant states that the competition was a Special Measures Employment Equity
Process, intended to address gaps in the hiring of visible minorities and
Aboriginal persons. The applicant states that this process was supposed to take
priority over other competition processes.
[5]
While
the certified list was still active, the applicant made inquiries to the
employer about the process and why he had not been offered a position. The
applicant received an email dated August 18, 2005, from the Acting Assistant
Commissioner of the employer, Arden Thurber, which stated in part:
It is my understanding that you qualified
on a Parole Officer competitive process open to members of a Visible Minority
group and are 11th on the Eligibility List. The list remains valid
until October 12, 2005. To date, two indeterminate appointments have been made
from the list and a number of acting appointments, in various locations, have
been offered to you as a result of the process.
[6]
The
applicant presented a grievance on October 26, 2005. The grievance stated in
part:
I am writing this grievance in
response to Pittsburgh Institution and the Ontario Regions failure to place me
into a [sic] Indeterminate (WP-4) Parole Officer position before my
certified list expired. (October 9th/05).
As a successful candidate on the
competition process 2002-CSC-ONT-OC-88 (finishing 11th in the
region). I did not receive any indeterminate offers from the time this
competition process was certified (November of 2003 through the expiry date
mentioned above). This is despite the fact that there were a number of
identified positions available both at Pittsburgh Intuition [sic] and
other locations in the Ontario Region.
[7]
The
applicant’s grievance alleged that the employer violated section 5 of the Public
Service Employment Act, RSC 1985, c P-33 (PSEA); Article 37 of the applicant’s
collective agreement (a non-discrimination clause); and the Employment
Equity Act, SC 1995, c 44.
[8]
The
applicant’s grievance proceeded through all four levels of evaluation. The
employer’s response to the grievance at the final level, dated August 12, 2009,
stated in part:
I must inform you that since your
grievance relates to a staffing matter, in accordance with subsection 208(2) of
the Public Service Labour Relations Act (PSLRA) you had another
administrative procedure for redress available to you under the former PSEA.
Moreover, subsection 208(1) of the PSLRA defines the grounds under which
employees are entitled to present an individual grievance. The subject matter
of your grievance does not fall within these grounds.
[9]
Pursuant
to section 209(1) of the Act, the applicant states that he referred the
grievance to adjudication after the Level 3 decision regarding the grievance.
[10]
By
the time the grievance was adjudicated, the applicant had been appointed to a
Parole Officer position (as a result of a separate competition process in
2008); therefore, by the hearing, he indicated he was only seeking a
declaration that the employer violated the collective agreement and the Canadian
Human Rights Act, RSC 1985, c H-6 (CHRA), as well as damages for that violation.
[11]
On
September 15, 2009, the employer objected to the jurisdiction of the Board to
hear the grievance. The Board informed the parties that the objection would be
dealt with at the beginning of the hearing on September 23, 2009. The
respondent states that the record before the Board in considering the
jurisdiction issue consisted only of the applicant’s grievance, dated October
26, 2005, and the grievance decision covering all levels of the grievance
process, dated October 31, 2005. Both parties made arguments regarding the jurisdiction
issue, but no evidence was presented by the parties.
[12]
The
Court notes that the applicant filed complaints regarding another appointment
process, this time for a Correctional Manager position, and those complaints
went before the Public Service Staffing Tribunal: Brown v The Commissioner
of Correctional Service of Canada, 2011 PSST 0015. In that case, the
applicant alleged discrimination and he raised the facts in relation to the
appointment process at issue in this case. While the Tribunal found that it
could not determine whether there was any abuse of authority in previous
appointments, it found that it could examine the previous appointment processes
as part of the context of the applicant’s complaint in order to shed light on
the appointment at issue.
Decision
under review
[13]
In
its decision dated October 14, 2009, the Board found that it had no
jurisdiction to hear the grievance. It therefore allowed the employer’s
objection, and dismissed the grievance. The Board summarized the facts giving
rise to the grievance, and noted that the applicant was now limiting the
grievance to the alleged violation of the non-discrimination clause of his
collective agreement, and violation of the CHRA.
[14]
The
Board then summarized the employer’s preliminary objection to the Board’s
jurisdiction: the employer submitted that the grievance related to an
appointment, and the PSEA provided a procedure to appeal appointment decisions.
The employer submitted that the grievance could not be heard by the Board,
pursuant to section 208(2) of the Act, because another administrative procedure
was available for redress, and because the grievance did not fall within any of
the paragraphs under section 209(1) of the Act.
[15]
The
Board summarized the applicant’s submissions regarding jurisdiction: the applicant
submitted that the Board had jurisdiction to decide whether a clause of the
collective agreement and the CHRA were violated by the employer. The applicant
submitted that section 208(2) of the Act provides jurisdiction to hear a
grievance on possible violation of the CHRA.
[16]
The
Board found that section 208(2) clearly precluded the applicant’s grievance:
Subsection 208(2) of the Act is
clear: an employee cannot present a grievance in respect of which an administrative
procedure for redress is provided under another Act of Parliament other than
the CHRA. The grievance is also clear in that it relates to staffing. On
that point, the PSEA provides employees with an administrative procedure
for redress. The grievor could have used that procedure to challenge the
employer’s staffing decision. Consequently, I do not have jurisdiction to hear
the grievance.
[17]
The
Board found that the PSEA procedure was the proper recourse even in relation to
the applicant’s allegations of discrimination:
Even if the grievor were to prove that he
was discriminated against by the decisions or actions of the employer when it
staffed or did not staff parole officer positions, I would still conclude that
I do not have jurisdiction. The grievor could have used the administrative
redress procedure provided by the PSEA to argue discrimination. One of
the intents of subsection 208(2) of the Act is to prevent the use of
multiple recourses for the same challenged issues or decisions. There was an administrative
redress procedure provided by the PSEA, and I cannot agree that the
grievor is also entitled to refer the same issue to adjudication, even if it
deals with human rights.
[18]
The
Board found that the cases relied on by the applicant were distinguishable,
because in those cases there was not another administrative procedure available
to the applicant. Therefore, the Board concluded, the Board had no jurisdiction
and the grievance was dismissed.
LEGISLATION
[19]
Section
208(1) of the Public Service Labour Relations Act, SC 2003, C 23, s 2
(the Act) specifies the circumstances in which an employee is entitled to
present an individual grievance:
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208.
(1) Subject to subsections (2) to (7), an employee is entitled to present an
individual grievance if he or she feels aggrieved
(a)
by the interpretation or application, in respect of the employee, of
(i)
a provision of a statute or regulation, or of a direction or other instrument
made or issued by the employer, that deals with terms and conditions of employment,
or
(ii)
a provision of a collective agreement or an arbitral award; or
(b)
as a result of any occurrence or matter affecting his or her terms and
conditions of employment.
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208.
(1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de
présenter un grief individuel lorsqu’il s’estime lésé :
a) par
l’interprétation ou l’application à son égard :
(i)
soit de toute disposition d’une loi ou d’un règlement, ou de toute directive
ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii)
soit de toute disposition d’une convention collective ou d’une décision
arbitrale;
b) par
suite de tout fait portant atteinte à ses conditions d’emploi.
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[20]
Section
208(2) of the Act states that an employee may not present a grievance if
another administrative procedure for redress has been provided under any Act of
Parliament other than the CHRA:
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208.
(2) An employee may not present an individual grievance in respect of which
an administrative procedure for redress is provided under any Act of
Parliament, other than the Canadian Human Rights Act.
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208. (2)
Le fonctionnaire ne peut présenter de grief individuel si un recours
administratif de réparation lui est ouvert sous le régime d’une autre loi
fédérale, à l’exception de la Loi canadienne sur les droits de la personne.
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[21]
Section
209(1) of the Act permits an employee to refer an individual grievance to
adjudication by the Board under certain circumstances:
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209.
(1) An employee may refer to adjudication an individual grievance that has
been presented up to and including the final level in the grievance process
and that has not been dealt with to the employee’s satisfaction if the
grievance is related to
(a)
the interpretation or application in respect of the employee of a provision
of a collective agreement or an arbitral award;
(b)
a disciplinary action resulting in termination, demotion, suspension or
financial penalty;
(c)
in the case of an employee in the core public administration,
(i)
demotion or termination under paragraph 12(1)(d) of the Financial
Administration Act for unsatisfactory performance or under paragraph 12(1)(e)
of that Act for any other reason that does not relate to a breach of
discipline or misconduct, or
(ii)
deployment under the Public Service Employment Act without the employee’s
consent where consent is required; or
(d)
in the case of an employee of a separate agency designated under subsection
(3), demotion or termination for any reason that does not relate to a breach
of discipline or misconduct.
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209.
(1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable
sans avoir obtenu satisfaction, le fonctionnaire peut renvoyer à l’arbitrage
tout grief individuel portant sur :
a)
soit l’interprétation ou l’application, à son égard, de toute disposition
d’une convention collective ou d’une décision arbitrale;
b)
soit une mesure disciplinaire entraînant le licenciement, la rétrogradation,
la suspension ou une sanction pécuniaire;
c)
soit, s’il est un fonctionnaire de l’administration publique centrale :
(i) la
rétrogradation ou le licenciement imposé sous le régime soit de l’alinéa
12(1)d) de la Loi sur la gestion des finances publiques pour rendement
insuffisant, soit de l’alinéa 12(1)e) de cette loi pour toute raison autre
que l’insuffisance du rendement, un manquement à la discipline ou une
inconduite,
(ii)
la mutation sous le régime de la Loi sur l’emploi dans la fonction publique
sans son consentement alors que celui-ci était nécessaire;
d)
soit la rétrogradation ou le licenciement imposé pour toute raison autre
qu’un manquement à la discipline ou une inconduite, s’il est un fonctionnaire
d’un organisme distinct désigné au titre du paragraphe (3).
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[22]
Section
8 of the Public Service Employment Act, RSC, 1985, c P-33, as repealed
by the Public Service Modernization Act, SC 2003, c 22, s 284, effective
December 30, 2005 (SI/2005-121) (PSEA), stated that the Public Service
Commission had exclusive authority over appointments within the public service:
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8.
Except as provided in this Act, the Commission has the exclusive right and
authority to make appointments to or from within the Public Service of
persons for whose appointment there is no authority in or under any other Act
of Parliament.
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8.
Sauf disposition contraire de la présente loi, la Commission a compétence
exclusive pour nommer à des postes de la fonction publique des personnes, en
faisant partie ou non, dont la nomination n’est régie par aucune autre loi
fédérale.
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[23]
Section
21 of the PSEA permitted an unsuccessful candidate to appeal an appointment to
the Commission:
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21.
(1) Where a person is appointed or is about to be appointed under this Act
and the selection of the person for appointment was made by closed
competition, every unsuccessful candidate may, within the period provided for
by the regulations of the Commission, appeal against the appointment to a
board established by the Commission to conduct an inquiry at which the person
appealing and the deputy head concerned, or their representatives, shall be
given an opportunity to be heard.
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21.
(1) Dans le cas d’une nomination, effective ou imminente, consécutive à un
concours interne, tout candidat non reçu peut, dans le délai fixé par règlement
de la Commission, en appeler de la nomination devant un comité chargé par
elle de faire une enquête, au cours de laquelle l’appelant et
l’administrateur général en cause, ou leurs représentants, ont l’occasion de
se faire entendre.
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ISSUE
[24]
The
Court finds that the only issue to be decided is whether the Board was correct
to find that it did not have jurisdiction to hear the applicant’s grievance.
STANDARD OF REVIEW
[25]
In
New
Brunswick (Board of Management) v Dunsmuir, 2008 SCC 9,
at paragraph 59, the Supreme Court held that the standard of review is
correctness for true questions of jurisdiction:
Administrative
bodies must also be correct in their determinations of true questions of
jurisdiction or vires. We mention true questions of vires to
distance ourselves from the extended definitions adopted before CUPE. It
is important her to take a robust view of jurisdiction. We neither wish nor
intend to return to the jurisdiction/preliminary question doctrine that plagued
the jurisprudence in this area for many years. “Jurisdiction” is intended in
the narrow sense of whether or not the tribunal had the authority to make the
inquiry. In other words, true jurisdiction questions arise where the tribunal
must explicitly determine whether its statutory grant of power gives it the
authority to decide a particular matter.
[26]
In
the decision under review, the Board decided that it did not have jurisdiction
to hear the grievance. Therefore, this decision is in relation to a true
question of jurisdiction or vires, and the standard of review is
correctness.
ANALYSIS
[27]
The
applicant submits that the grievance was in relation to the interpretation or
application of a provision of a collective agreement, and therefore it fell
within section 209(1)(a), and was properly referred to adjudication by the
Board. The respondent submits that the grievance relates to a staffing
decision, which falls within the regime under the PSEA, and therefore was
beyond the jurisdiction of the Board.
[28]
The
Court finds that section 208(2) of the Act clearly precludes the presentation
of a grievance where another administrative procedure for redress is provided
under another Act of Parliament other than the CHRA. The Court finds that the
facts giving rise to the applicant’s grievance relate to a staffing appointment.
Section 8 of the PSEA, which was in force at the time of the applicant’s grievance,
granted exclusive authority over appointments to the Public Service Commission.
Section 21 of the PSEA granted unsuccessful candidates a right to appeal any
appointment decision to the Commission.
[29]
The
Court finds that it was this process – an appeal under section 21 of the PSEA –
that the applicant should have pursued for redress in relation to the
employer’s appointment decision. Since this procedure was available to the
applicant, the applicant was in fact not entitled to present his grievance at
any level of the grievance process under the Act, nor was he entitled to refer
the grievance to adjudication: Canada (Attorney General) v Boutilier, [1999] 1 FC 459 (TD).
[30]
The
applicant submitted to the Court that he could not have appealed the
appointment under this procedure because the employer would not inform him
whether any appointments had been made. However, there is evidence before the
Court that a credible, senior individual within Correctional Service of Canada—the Acting Assistant
Commissioner, Arden Thurber—informed the applicant by email that two
appointments were made from the applicant’s eligibility list. It was up to the
applicant to act on this information in the proper forum.
[31]
The
Court further notes that the appeal process under the PSEA would have permitted
the applicant to present his allegations of discrimination. The Public Service
Commission Appeal Board had jurisdiction to consider allegations of
discrimination: Chopra v Canada (Attorney General), 2005 FCA 374. The
applicant has presented these kinds of allegations to the Public Service
Staffing Tribunal, which is the tribunal that succeeded the Public Service
Commission Appeal Board: Brown v The Commissioner of
Correctional Service of Canada, 2011 PSST 0015. Thus, this forum would
have been able to consider all of the applicant’s allegations, including that
he was discriminated against in the competition process.
[32]
The
Court finds that the Board was correct to conclude that it did not have
jurisdiction to hear the grievance. The Court therefore has no basis upon which
to intervene, and the application for judicial review is dismissed.
[33]
There
will be no order as to costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
“Michael
A. Kelen”
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