Date: 20070614
Docket: T-937-06
Citation: 2007 FC 630
Ottawa, Ontario, June 14,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
ELSIE
BEALL
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
wherein the Attorney General of Canada seeks to set aside a decision dated
April 19, 2006 of an Independent Third Party Reviewer (the Reviewer)
established pursuant to the Canada Revenue Agency’s staffing program which
ordered the respondent’s permanent appointment as a compensation service agent
with an AS-01 classification. The issue is whether the Reviewer had the
jurisdiction to appoint the respondent to a permanent position under the
staffing program “Directives on Recourse for Staffing”.
Facts
The selection process
[2]
In December 2004, the Agency announced that it
intended to open and staff a new Compensation Client Service Centre in Winnipeg (the Service Centre) in May 2005. A
Notice of Opportunity was issued detailing the job description and duties and
requisite experience, education and security status.
[3]
The selection board received 177 applications.
After the assessment phase, there were 58 candidates in the pool including the
respondent. For the first round of staffing, 30 candidates were required. Based
on the candidates’ combined score for skills including analytical thinking and ability
to use specified software, the Agency issued acting and term job offers until
the Service Centre had 30 candidates to undergo a seven week training program
beginning in May 2005. The respondent was part of the cohort of employees scheduled
to start work on June 27, 2005. In September 2005, the acting director of the
Service Centre advised that permanent positions could be staffed from among
this first round of trainees.
[4]
On September 9, 2005, the respondent was
informed by her team leader that she would probably not be receiving an
appointment to an indeterminate position with the rest of the group of
trainees. The respondent’s team leader expressed concern about her inconsistent
use of family and sick leave. As a result, the respondent was informed that her
performance could not be assessed as meeting the requisite standard unless her
attendance improved. After the meeting with her team leader, the respondent sent
an e-mail message requesting a summary of the conditions she was required to
meet and the timeframe for meeting them in order to obtain permanent employment
status within the Service Centre. She did not receive a reply.
[5]
On September 15, 2005, the respondent met with
the acting assistant director and presented a written summary of her leave
taken so far that year. The respondent stated that, by the end of this meeting,
she felt “cautiously optimistic that nothing was cast in stone.”
[6]
The acting assistant director requested that the
team leaders review the trainees’ current job performance as required by the
staffing bulletin for proposed placements. The respondent’s performance check
was completed by her team leader during the last week of September. A selection
board consisting of both team leaders and the acting assistant director
reviewed the documentation. All employees who met current job performance
requirements were then considered for placement, while those who did not—including
the respondent—were not considered further. These individuals were advised by
letter that they were not considered at that time for appointment.
Consideration for permanent appointment was to be revisited when performance
improved and raised to the requisite level. A total of 28 employees were
proposed for appointment on October 6, 2005. The respondent was not one of
them.
[7]
On October 7, 2005, the respondent was informed
by her team leader that she would not be receiving a permanent placement. The
respondent’s attempts to persuade her team leader to reconsider the decision
were unsuccessful.
Recourse
[8]
On October 13, 2005, the respondent requested
individual feedback under the Agency’s staffing program. She and a union
representative met with the acting assistant director on October 19, 2005. The
respondent was provided with a blank copy of the form used to assess
candidates’ performance in the selection process. The respondent requested a
copy of her own performance check but was denied access because the acting
assistant director believed the respondent had already reviewed the form with
her team leader. In fact, the respondent did not see her performance check
until February 14, 2006, when she obtained a copy following a request made
under the Privacy Act.
[9]
On October 26, 2005, the respondent filed a
request for an independent third party review under the Agency’s staffing
program.
Decision under review
[10]
In a decision dated April 19, 2006, the Reviewer
concluded that the respondent was treated in an arbitrary manner during the
placement stage of the selection process, based on the following:
i. the assessment of the respondent’s
medical and family-related leaves was unreasonable and arbitrary;
ii. the assessment that the
respondent was unable to accept constructive criticism was unreasonable;
iii.
the team leader’s failure to observe the action
plan agreement entered into with the respondent was unreasonable and arbitrary;
and
iv.
the assessment of the respondent’s job
performance was arbitrary and unfair.
[11]
The Reviewer ordered the following corrective
measures at page 23 of his decision:
I
order the following corrective measures:
(a) The Agency’s error made on 6 October 2005 will be
corrected. The [respondent] will be appointed, effective 6 October 2005, to an
indeterminate position as a AS-01 in [the Service Centre].
(b) A manager other than [the respondent’s team leader]
should be involved in the evaluation of the [respondent’s] future performance.
(c) If possible, the [respondent] should be assigned to a
team leader other than [her existing team leader.]
Relevant Legislation and Directive
[12]
The legislation relevant to this application is
the Canada Revenue Agency Act, S.C. 1999, c. 17 (the Act) and, in
particular, sections 53 and 54 which read as follows:
|
Appointment of employees
53. (1) The Agency has the exclusive right and authority to
appoint any employees that it considers necessary for the proper conduct of
its business.
Commissioner’s responsibility
(2) The Commissioner must exercise the appointment authority under
subsection (1) on behalf of the Agency.
Staffing
program
54. (1) The Agency must develop a program governing staffing,
including the appointment of, and recourse for, employees.
Collective agreements
(2) No collective agreement may deal with matters governed by the
staffing program.
[Emphasis added]
|
Pouvoir d’embauche de l’Agence
53. (1)
L’Agence a compétence exclusive pour nommer le personnel qu’elle estime
nécessaire à l’exercice de ses activités.
Nominations par le commissaire
(2) Les attributions prévues au paragraphe (1) sont
exercées par le commissaire pour le compte de l’Agence.
Programme de dotation
54. (1)
L’Agence élabore un programme de dotation en personnel régissant notamment
les nominations et les recours offerts aux employés.
Exclusion
(2) Sont exclues du champ des conventions collectives
toutes les matières régies par le programme de dotation en personnel.
[je souligne]
|
[13]
Also relevant to this application is Annex L of
the Agency’s staffing program, "Directives on Recourse for Staffing",
which provides in part:
Program
Statements:
-
Recourse provides the opportunity for
individuals to raise concerns related to staffing and to have these addressed
in a timely manner.
-
Individuals have access to recourse mechanisms
including Individual Feedback, Decision Review Process and Independent Third
Party Review, depending on the nature of the staffing activity and as per the
Directive on Recourse for Staffing.
-
Individual Feedback is provided upon request by
the person(s) responsible for that particular staffing process or stage of the
selection process.
-
Individual Feedback applies to such
circumstances as:
·
Term extensions;
·
Rehire of term employees
·
Temporary lateral moves; and
·
At the pre-requisite stage of the selection
process.
-
Individual feedback is also a mandatory step
before proceeding to other forms of staffing recourse.
[…]
-
Independent Third Party Review (ITPR) is the
review of an individual’s concern by a person external to the Agency, resulting
in a binding and non-precedent-setting decision.
-
Independent Third Party Review applies to:
·
Permanent promotions without a Selection
Process;
·
Selection Process/Pre-qualified Pool placement
decisions for permanent promotions; and
·
Entry (from within the Agency) into an
Apprenticeship program.
[…]
Grounds for
Recourse
-
In all cases, the grounds for recourse for
Individual Feedback, Decision Review Process and Independent Third Party Review
is whether the employee exercising recourse was treated in an arbitrary way.
The focus should be on the treatment of the individual in the process and not
on the evaluation of other candidates or employees.
-
For each of the three recourse processes, the
review shall be limited to the circumstances directly related to that phase of
the Selection Process or Staffing Process. For example, Independent Third Party
Review would be limited to the placement phase of the selection process.
-
Arbitrary is
defined as follows:
“In an unreasonable
manner, done capriciously; not done or acting according to reason or judgment;
not based on rationale, on established policy; not the result of a reasoning
applied to relevant considerations; discriminatory (i.e., difference of
treatment or denial of normal privileges to persons because of their race, ace,
sex, nationality, religion or union affiliation.”
[…]
Corrective
Measures
-
Authorized Persons are accountable for taking
appropriate corrective measures, in a timely manner. During the Selection
process, these corrective measures must be taken immediately so that the
process is not unnecessarily delayed.
-
For staffing, the range of possible corrective
measures includes:
·
Order correction of the error in the process;
·
Recommend revocation of appointed employee, if
required;
·
Recommend having another manager involved in the
decision.
Issue
[14]
The applicant does not take issue with the
Reviewer’s factual findings or his two recommendations relating to the assignment
of the respondent to a different manager. Accordingly, the only issue to be
decided is whether the Reviewer exceeded his jurisdiction in ordering the
appointment of the respondent to an indeterminate position.
Standard of review
[15]
The Act does not contain a privative clause or a
right of appeal from a Reviewer’s decision. The Agency’s staffing program and Independent
Third Party Review Guidelines are also silent. The scope of the Reviewer’s
jurisdiction is a pure question of law and turns on the proper interpretation
of the Act and the terms of reference for the independent third party review.
The Reviewer’s expertise in employment matters and familiarity with the
Agency’s staffing practices does not attract curial deference in the context of
this jurisdictional question. Accordingly, I conclude that the appropriate
standard of review is one of correctness.
Analysis
[16]
The Court has previously undertaken judicial
review of decisions by an “Independent Third Party Reviewer” established under
the CCRA internal staffing program. In Canada (Customs and Revenue Agency) v. Kapadia, 2005 FC 1568, I undertook a
judicial review of such a decision and held at paragraph 4:
Recourse
4. The
CCRA staffing program provides unsuccessful candidates the opportunity to seek
recourse. Ms. Kapadia sought “individual feedback” as required before
requesting an ITPR on May 27, 2003. The ITPR provides for timely and informal
staffing dispute resolution by rostered reviewers who are independent of the
CCRA and satisfy specific education and experience criteria.
[17]
The legal framework governing the
independent third party review was succinctly described by Justice Sean
Harrington in Canada (Attorney General) v. Gagnon, 2006 FC 216 at paragraphs 6 to 11:
¶6 The
Act establishes the CCRA as a body corporate. Among other tasks, the CCRA is
also responsible for the administration and enforcement of fiscal legislation including
the Customs Act, the Excise Act and the Income Tax Act.
¶7 As for
human resources, the Public Service Labour Relations Act stipulates that
the CCRA is a separate agency. It can therefore set its own requirements with
regard to its own needs as well as the allotment and efficient use of its human
resources, pursuant to subsections 53(1) and 54(1) of the Act.
50. The Agency is a separate agency under the Public
Service Labour Relations Act.
53. (1) The Agency has the exclusive right and authority
to appoint any employees that it considers necessary for the proper conduct of
its business.
54. (1) The Agency must develop a program governing
staffing, including the appointment of, and recourse for, employees.
¶8 In order to meet its legal responsibilities,
human resources have developed a detailed program which includes the:
"Directive on the Selection Process/Pre-Qualified Pool",
"Directives on Recourse for Staffing" and "Guidelines for
Submitting and Processing a Request for an Independent Third Party
Review". In the context of this overall process, three stages must be
completed, namely: (1) "Review of pre-requisite stage"; (2)
"Assessment stage"; and (3) "Placement stage". Ms. Gagnon
was at the third stage. Since she had not been chosen for the position, she had
the right to initiate the "individual feedback" process, which she
did. Since this process was not satisfactory, she was therefore entitled to
proceed to "either Decision Review or Independent Third Party Review".
Ms. Gagnon chose to initiate an independent third party review.
¶9 The "grounds for
recourse" in the context of an independent third party review must be
based on the fact that the employee "was treated in an arbitrary
way". […]
¶10 With respect to the
"recourse", the "Directives" stipulate as follows:
For staffing,
the range of possible corrective measures includes:
- order correction of the error
in the process;
- recommend revocation of
appointed employee, if required;
- recommend having another
manager involved in the decision.
¶11 The
"Guidelines" on processing requests for independent third party
reviews include an appendix establishing the range of corrective measures for
staffing in the case of termination of employment or non-disciplinary demotion
as well as dismissal. It should be noted that in the last two cases, the
independent third party may order that the employee be reinstated. However,
the only order allowed in the case of a staff appointment is the correction of
the error in the process.
[Emphasis added]
[18]
The Agency’s Staffing Program limits the power
of the Reviewer to ordering that an “error in the process” be corrected. Since
the Reviewer found that the Agency’s assessment process was tainted by errors
in, among other things, the evaluation of the respondent’s authorized use of
sick and family leave, he had reason to order, as in Gagnon, above, that
an error had to be corrected. In Gagnon, Justice Harrington held at paragraph
21:
¶21 The Regulation limits the power of the
independent third party to ordering that an error in the process be corrected.
Since the independent third party found that in effect the hiring process had
begun with a notice dated February 25, 2002, inviting employees to apply and
that the employer had acted arbitrarily, he had reason to order that an error
had to be corrected. He had the power to make recommendations in this
regard, but he had no authority to order the CCRA as to how it should correct
the error.
[Emphasis added]
I agree with the applicant that the Reviewer
exceeded his jurisdiction under the Agency’s Staffing Program in ordering the
appointment of the respondent to an indeterminate position. However, I would
state somewhat differently from Justice Harrington the basis on which this
excess of jurisdiction arises.
[19]
In my view, the phrase “error in the process”
yields the operative constraint on the scope of the corrective measures which
the Reviewer may order. The respondent notes that, unlike the latter two
corrective measures identified in the Agency’s Staffing Program which refer to recommendations,
the first corrective measure refers to an “order”. This distinction, the
respondent argues, suggests that the Reviewer is given authority to compel the
provision of a specific remedy to correct a staffing error rather than merely
recommend changes to be implemented at the discretion of the Agency. I agree
that the distinctive phrasing used in respect of the first corrective measure
authorizes the Reviewer to issue final corrective orders. However, the scope of
the Reviewer’s orders is not unlimited. In my view, the range of possible
corrective measures described in the Agency’s Staffing Program must be
interpreted so as to limit orders to those that address and correct procedural
defects giving rise to the arbitrary treatment experienced by the
respondent. In a case where arbitrary treatment results from the consideration
of irrelevant factors during a selection process, for example, the Reviewer may
order that the process be re-administered without regard to the irrelevant
factors. The Reviewer is not authorized, however, to issue final orders that
dictate the substantive result of a process found to be deficient.
[20]
The alternative reading suggested by the
respondent would permit the Reviewer to substitute his own conclusion as to the
appropriate final outcome of the Agency’s staffing process. This alternative
interpretation is inconsistent with the overall scheme of the Act and the Agency’s
Staffing Program, which provide the Agency with the autonomy to conduct its own
staffing processes subject, in certain cases, to independent review in respect
of procedural issues.
Conclusion
[21]
At the hearing of this application, I adjourned
this matter pending the outcome of an appeal of Justice Harrington’s judgment
in Gagnon, above. On April 25, 2007, the Federal Court of Appeal
dismissed the appeal from the bench and held that the Reviewer in Gagnon
exceeded his jurisdiction and could not nominate the complainant to a position:
Gagnon v. Canada (Attorney General), 2007 FCA 164. The
parties were invited to provide submissions regarding the effect of the Federal
Court of Appeal’s judgment and did so in writing. I am satisfied that nothing
in that decision impacts the analysis above, and I accordingly conclude that
the Reviewer exceeded his jurisdiction in ordering the retroactive appointment
of the respondent. The Reviewer’s power to order corrections to errors in the
selection process does not include the power to dictate the substantive result of
a process tainted by a procedural defect. Therefore, this application for judicial
review is allowed in part, and the decision under review will be remitted to
the same Reviewer for the determination of appropriate corrective measures
authorized under the Agency’s Staffing Program. Each party will bear its own
costs of this application.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES THAT:
1.
the
application for judicial review is allowed in part;
2.
the
Reviewer’s corrective measure to appoint the respondent to an indeterminate
position is declared unlawful and inconsistent with the Agency’s Staffing
Program;
3.
this
matter is remitted to the same Reviewer for reconsideration of appropriate
corrective measures authorized by the Agency’s Staffing Program and
the Canada Revenue Agency Act; and
4.
each party shall bear its own costs of this
application.
“Michael
A. Kelen”
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