Docket: T-871-10
Citation:
2011 FC 1327
Ottawa, Ontario, November 18, 2011
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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MONICA AGARD, SABINA
BROUWERS, SHIRAZ ISMAIL, NORMAN MURRY,
HALA SALEH, PIETRO
VALENTYNE, JESSICA YATEMAN, ET AL
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Applicants
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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
I. Introduction
[1]
The Applicants in this application for judicial review are
all federal public servants employed as Case Management Officers (CMOs) of the
Immigration and Refugee Board of Canada (IRB). Within the federal public
service scheme of employee classification, CMOs are classified as PM-01 level
employees. Since at least 2002, the CMOs have been fighting to have their position
reclassified upwards.
[2]
In this judicial review application, the Applicants seek to
overturn the decision of Mr. Simon Coakeley, Executive Director of the
IRB, acting as Deputy Head of the IRB. In that decision, dated May 11, 2010,
Mr. Coakeley accepted the recommendation of a Classification Grievance
Committee (CGC) that the classification of the Applicants (and others) would
remain at the PM-01 level.
II. Issues
[3]
Although the Applicants initially raised a number of
issues, the only issue argued before me was whether the decision should be set
aside on the basis that the membership and actions of Mr. Jean-Claude Pelchat
as the Chairperson of CGC raises a reasonable apprehension of bias.
[4]
If I conclude that the participation of Mr. Pelchat on the
CGC, or his actions on the CGC, gave rise to an apprehension of bias, it would
taint the decision of Mr. Coakeley and the matter would be sent back for
re-determination by a newly-constituted CGC.
III. Background
[5]
Public service employees are paid according to the
classification of their positions. The classification of public service
employees is comprised of two parts: a job description setting out the job
content, and a classification based on the job description. At the first step,
the duties and responsibilities of a position are defined. In the second step,
the various components of the job description are assessed using a variety of
comparators and benchmarks. In this application, we are dealing with the
grievance of the classification part of the process.
[6]
Disputes can – and do – arise with respect to either the
job description or the comparative assessment involved in classification. In
this case, in a decision made in or around September 2005 (the Classification
Decision), a Classification Committee, established by the employer to evaluate
the CMO positions, determined that the CMOs should be classified at a PM-01
level. According to the unchallenged affidavit of Mr. Jonathan Salois, 86 CMOs
(including the Applicants in this case) individually brought grievances of the
Classification Decision, with respect to both the job description and the
classification of the positions. The classification grievances were held in
abeyance to allow for the resolution of the job description grievances.
[7]
The grievances with respect to the CMO job description were
dealt with and ultimately resolved (albeit not to the satisfaction of the
Applicants) in accordance with the Staff Relations Grievance Process. A
final level “Reply to Grievance” was issued by the Chairperson of the IRB on
December 17, 2007, to each of the grievors. The Applicants’ bargaining agent determined
that it would not pursue the grievance of the CMO job description to
adjudication under the Public Service Labour Relations Act, SC 2003, c
22, s 2 [PSLRA]. At that point, the job description was “final and binding”
(pursuant to the operation of ss 209(1), (2) and 214 of the PSLRA) and the
grievance of the classification itself could proceed.
[8]
Grievances concerning classification are dealt with under the
Treasury Board’s Policy on Classification Grievances [Policy].
[9]
The composition of a classification grievance committee is
mandated by Appendix B - Classification Grievance Process of the Policy
and by the Treasury Board’s Classification Grievance Procedure at
section V.C [Procedure]. These documents provide that a classification grievance
committee must be composed of:
1.
a chairperson who is an accredited classification
specialist;
2.
a Treasury Board Secretariat grievance officer (with
certain exceptions); and
3.
a person from within or outside the department, preferably
a line manager with experience in applying the classification standard(s) being
used and knowledgeable of the type of work being grieved.
[10]
The Policy and Procedure provide that all committee members
must meet the following criteria:
·
they did not participate in the classification decision of
the position being grieved;
·
they are neither supervising the position in question nor
in a position of potential conflict of interest; and
·
they are knowledgeable about classification techniques and
experienced in the use of the relevant classification standard(s).
(These documents can be
found at:
http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12099§ion=text#appB and
at
http://www.tbs-sct.gc.ca/gui/prog-eng.asp).
[11]
The three CGC members for these particular grievances were:
·
Mr. Pelchat, Senior Classification Project Manager for the
IRB;
·
Mr. Dennis Boyd, Chief, Classification and Organization,
Courts Administration Service; and
·
Ms. Angela MacQuarrie, Analyst, Classification Grievances,
Treasury Board of Canada Secretariat.
[12]
Hearings into the classification grievances were held
before the CGC on December 17, 2009 and February 11, 2010.
IV. Analysis
[13]
The Applicants assert that the experience of the Chairperson
of the CGC and his actions give rise to a reasonable apprehension of bias. This
allegation appears to be based on two arguments:
1.
the CGC manifested a “closed mind” to their submissions on
the job content dispute; and
2.
the CGC was not sufficiently separate from the employer,
given the fact that the Chairperson, Mr. Pelchat, was working through a
subcontractor on classification related matters at the time of the
classification of the CMO position. In the Applicants’ view, Mr. Pelchat “has
galvanized an interest around classification matters relating to the IRB and
has … seated himself in close financial and organizational nexus with the
employer”.
[14]
The test for reasonable apprehension of bias is
well-established in the jurisprudence and is consistently cited as the
following, taken from the dissent of Justice de Grandpré in Committee for
Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369 at 394, 68
DLR (3d) 716 [Committee for Justice]:
[T]he apprehension of
bias must be a reasonable one, held by reasonable and right minded persons,
applying themselves to the question and obtaining thereon the required
information. In the words of the Court of Appeal, that test is “what would an
informed person, viewing the matter realistically and practically – and having
thought the matter through – conclude Would he think that it is more likely
than not that [the decision-maker], whether consciously or unconsciously, would
not decide fairly.”
[15]
The first allegation that Mr. Pelchat exhibited a “closed
mind” to the grievors’ submissions on job content is easily dismissed. The
CGC’s failure to reconsider the job content issue cannot give rise to a
reasonable apprehension of bias for the simple reason that the CGC was neither
required nor permitted to reconsider that issue. Pursuant to s 214 of the PSLRA, the decisions taken in December 2007 on the job
description grievances were final and binding. Section 214 states that:
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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.
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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.
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[16]
The second part of the bias allegation relates specifically
to the Chairperson, Mr. Pelchat’s previous work for the IRB in staffing
issues. As acknowledged by the Applicants, Mr. Pelchat’s prior work with the
IRB does not automatically mean that he has either a bias or a conflict of
interest (see e.g. Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2
SCR 259 [Wewaykum]).
[17]
As confirmed by the Supreme Court in Vaughan v Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, Parliament did not intend the grievance procedure to be independent of
the employer. The Treasury Board’s Policy is also instructive. At Appendix
B - Classification Grievance Process, under the heading “Grievance committees”,
the Policy provides that “[i]f the grievance concerns a position for which the
department has classification authority, an accredited classification officer (normally
from the department in which the grievance occurs) must chair the committee
…” [Emphasis added]. The Policy thus contemplates that a chairperson will have
some relationship with the grieved position.
[18]
In assessing whether the prior involvement of Mr. Pelchat
rises to the level of an apprehension of bias, I turn to the undisputed
evidence in his affidavit. There, Mr. Pelchat states that he has worked either
as a consultant, a casual or a term employee of the IRB since 2003, and that he
was a term employee in a Senior Classification Project Manager position at the
time of the Classification Grievance Hearing. Mr. Pelchat states that, in 2005,
he was a consultant for a company that had a contract with the IRB and that he
participated in the review of selected positions under the Classification
strategy. Mr. Pelchat states that he was never asked to work on the CMO work
description or to provide any input regarding the CMO position. Mr. Pelchat
further reports that he did not become an IRB employee until the summer of
2008.
[19]
The Applicants allege that Mr. Pelchat’s work as a
subcontractor was part of a broader systemic review under which the CMO
position was assessed within the IRB, in which he would have necessarily had
some exposure to the CMO positions. The problem with this argument is that I
have no evidence that this was the situation. Mr. Pelchat was not examined on
his affidavit and his statements must, absent contrary evidence, be accepted as
true. There is no evidence that Mr. Pelchat’s work on other classification
reviews “coloured” his view of the CMO positions. Moreover, the Policy and
Procedure do not appear to prohibit this situation, as they only provide that a
committee member must not have participated “in the classification decision of
the position being grieved” (Procedure, above at V.C at para 2(a) [Emphasis
added]).
[20]
The Applicants’ bias allegations appear to be based on Mr.
Pelchat’s “interest around classification matters relating to the IRB” and the
fact that he has been remunerated by the IRB for his work in this area as both
an employee and a contractor. The Applicants have not
clearly defined Mr. Pelchat’s allegedly conflicting interest, and none is
apparent from the evidence. Moreover, the fact that all
committee members must be knowledgeable about
classification techniques and experienced in the use of the relevant classification
standards suggests that the relationship alleged by the Applicants does not
create a conflict of interest.
[21]
Similarly, although the Applicants allege that Mr. Pelchat
has a pecuniary interest giving rise to bias, they do not appear to allege that
he had any pecuniary interest in the outcome of their grievance. Rather, the
facts they present suggest that Mr. Pelchat had a pecuniary interest in working
for the IRB. This is certainly not enough to create an apprehension of bias.
[22]
In conclusion, I refer to the teachings of the Supreme
Court that the grounds for apprehension of bias must be substantial (see Wewaykum,
above at para 76, endorsing the comments of Justice de Grandpré in Committee
for Justice, above at 395). In the case before me, I cannot conclude that
the grounds are substantial. Although well-qualified in the area of
classification and experienced in the organization of the IRB, Mr. Pelchat
never worked directly on the CMO positions. Stated in terms of the test for
apprehension of bias, an informed person, viewing the matter realistically and
practically – and having thought the matter through – would not think that it
is more likely than not that Mr. Pelchat, whether consciously or unconsciously,
would not decide fairly.
[23]
For these reasons, the application for judicial review will
be dismissed.
[24]
The parties agreed that, in any event, the costs of this
matter should be fixed at $4500. I believe that this is a reasonable award of
costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
costs, fixed in the amount of $4500, including all
disbursements and tax, are awarded to the Respondent.
“Judith A. Snider”
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