Desloges v. Canada (Attorney General), 2007 FC 60

 

Date: 20070123

Docket: T-2044-05

Citation: 2007 FC 60

OTTAWA, Ontario, January 23, 2007

PRESENT:     The Honourable Mr. Justice Teitelbaum

 

BETWEEN:

MICHEL DESLOGES

Applicant

and

 

ATTORNEY GENERAL OF CANADA

Respondent

 

REASONS FOR ORDER AND ORDER

 

[1]               This is a judicial review of a decision of the Assistant Deputy Minister, Human Resources, Foreign Affairs Canada (the “Assistant Deputy Minister”) dismissing a grievance brought by Michel Desloges, the applicant, under the procedure established in section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, repealed, 2003, c. 22, s. 2 (PSSR Act).

 

I.                    Background

[2]               Michel Desloges worked for Foreign Affairs Canada (the “Department”) from July 22, 1969 until his retirement on April 29, 2005.

[3]               On January 1, 1998, he was promoted to the EX-01 classification within the Department. An “EX” classification indicates a position is managerial. EX positions within the Department are not governed by a collective agreement.

 

[4]               On July 27, 2001, Desloges was posted to a rotational position in India, Counsellor and Program Manager. When Desloges took the position, it was classified as EX- 01 but it was reclassified as EX-02 on June 18, 2002 effective September 1, 2001.

 

[5]               When an employee performs the duties of a position classified at a higher level than the employee’s current classification, then the employee may receive “acting pay”. Since Desloges’ position in India was classified as EX-02, a level higher than Desloges’ own classification, he expected that he would receive acting pay for performing the duties of an EX-02 position. This expectation was based on a departmental e-mail that Desloges received July 17, 2002 which stated that his position had been reclassified as EX-02 and that “Funding for the reclassification of the rotational positions abroad will be covered by the Departmental reserve as approved by the Executive Committee” (Exhibit B of Desloges’ affidavit). Desloges also received a posting confirmation, dated March 27, 2003, that stated “acting EX-02 applies” (Exhibit D of Desloges’ affidavit).

 

[6]               According to the respondent, the posting confirmation dated March 27, 2003 was wrong and, on March 31, 2003, the Department sent out an amended posting confirmation that stated “acting does not apply”. The applicant did not confirm whether he received this posting confirmation and holds the position that he did not realise that he might not receive acting until August 2003 when he received another posting confirmation, this one dated August 29, 2003, which stated that his acting appointment in India had been extended and that “acting does not apply”.

 

[7]               On February 21, 2005, Desloges filed a grievance regarding the fact that he was not given acting pay for the period September 1, 2001 to April 14, 2005.

 

[8]               Desloges’ grievance was denied by a letter dated October 13, 2005 from the Assistant Deputy Minister. She rejected the grievances on two separate grounds. First, she found that the grievance had not been filed within the 25 day timeframe provided in section 71(1)(3) of the Public Service Staff Relations Board Regulations, SOR 93/348, (PSSRB Regulations). Second, she dismissed the grievance on the grounds that it was not the Department’s practice to give acting pay to rotational EX employees and she concluded that Desloges had been paid in accordance with the Salary Administration Policy for the Executive Group issued by the Treasury Board (the Salary Policy).

 

[9]               The Salary Policy states that “executives at levels EX-1 to EX-3 are eligible for acting pay within the EX Group when they are asked to perform all or a significant part of the duties of a position classified at a higher executive level for a period exceeding three (3) months”. Part 5.3 of the Salary Policy states that “In organizations or those parts of organizations where rotational pools, developmental programs and/or appointment-to-level prevail, deputy heads may elect not to implement this policy for executives acting in these environments”. The Assistant Deputy Minister’s decision implied that Desloges did not receive acting pay because the Deputy Head of the Department had elected under part 5.3 of the Salary Policy not to implement the Salary Policy  for employees in rotational EX positions. The Assistant Deputy Minister provided no proof of when or how this decision was made save to say that it has always been Department practice not to provide acting pay for rotational EX employees and the Deputy Minister had on two occasions rejected proposals to give rotational EX employees acting pay.

 

II.                 Legislative scheme

[10]           The relevant provisions of the Public Services Staff Relations Act follow:

 

 

 

[11]           The relevant portions of the Public Service Staff Relations Board Regulations follow:

 

 

 

III.               Issues

[12]           The issues are as follows:

a.       What is the standard of review for the Assistant Deputy Minister’s decision to dismiss the applicant’s grievance because it was untimely?

b.      Did the Assistant Deputy Minister err in dismissing the grievance based on her finding that it had not been filed within the time period laid out in section 71(3) of the PSSRB Regulations?

c.       What is the standard of review for the Assistant Deputy Minister’s decision to dismiss the applicant’s grievance on its merits?

d.      Did the Assistant Deputy Minister err in dismissing the grievance on its merits?

 

IV.              Analysis

Standard of review for the decision that the grievance was filed late

[13]           The standard of review of the Assistant Deputy Minister’s decision that the grievance was filed late must be determined by the pragmatic and functional approach. This involves a consideration of four factors: the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purpose of the legislation in question, as well as the purpose of the particular provision in question; and the nature of the question (Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19). The applicant did not make separate submissions on the standard of review for the decision that the grievance was untimely and the decision to dismiss the grievance on its merits. The respondent submitted that the appropriate standard of review for the decision that the grievance was untimely is patently unreasonable (Trépanier v. Canada (A.G.), 2004 FC 1326 [Trépanier]).

 

[14]           The Supreme Court of Canada has held that “…the wording of the PSSRA is not strong enough to “oust” the court’s jurisdiction in all matters grievable under s. 91 but not arbitrable under s. 92…” (Vaughan v. Canada, [2005] 1 S.C.R. 146 at para. 29 [Vaughan]). Moreover, the Federal Court of Appeal recently held that subsection 96 (3) is a relatively weak privative clause and, therefore, the decision-maker is to be afforded only some deference (Assh v. A.G. (Canada), 2006 FCA 358 [Assh]).

 

[15]           With regards to the relative expertise of the decision maker, the calculation of the 25 day deadline is a purely factual matter that the decision-maker has the expertise to determine. As the Court has no more expertise in such factual determinations than the decision-maker, this factor indicates a high degree of deference should be afforded to the decision.

 

[16]           The third factor is the purpose of the legislation and the purpose of the provision in question. In Trépanier at para. 23, Mr. Justice Blanchard held that the PSSR Act is “polycentric legislation, as it is intended to resolve questions involving contradictory policy objectives or the interests of different groups, and its purpose is not just to oppose the government to the individual.” Subsection 71(3) of the PSSRB Regulations is somewhat less polycentric than the PSSR Act as a whole since it provides for a determination of an individual’s right to make a grievance against the employer. I find that this factor suggests some deference.

 

[17]           The final factor is the nature of the question. As discussed above, a determination of whether a grievance was filed within the 25 day time period is a finding of fact and, therefore, indicates a high degree of deference.

 

[18]           Based on this analysis, I find that the standard of review applicable to the question of whether the grievance was filed within the 25 day time limit is the standard of patently unreasonable.

 

Decision on the Time Limit

[19]           The Assistant Deputy Minister held that the applicant was notified about his reclassification in July 2002 and did not file a grievance until March 2005. She found that the grievance was filed more than two years after the applicant became aware of the reclassification and, thus, the grievance was not filed within the 25 day limit provided in subsection 71(3) of the PSSRB Regulations.

 

[20]           The applicant in his written submissions argued the 25 day time limit does not apply to employees in the EX class . The applicant submitted that employees in the EX class are excluded from the definition of “employee” in section 2(1) of the PSSR Act by virtue of subsection (j) which excludes persons in managerial positions from the definitions of employee and that since EX employees are not “employees” for the purpose of the Act, the time limit in subsection 71(3) of the PSSRB Regulations does not apply to them.

 

[21]           The interpretation of the PSSR Act and PSSRB Regulations proposed by the applicant cannot stand in light of the expanded definition of employee within the definition of “grievance” in section 2 of the PSSR Act:

“grievance” means complaint in writing presented in accordance with this Act by an employee on his own behalf or on behalf of the employee and one or more other employees, except that (a) for the purposes of the provisions of the Act respecting grievances, a reference to an “employee” includes a person who would be an employee but for the fact that the person is a person described in paragraph (f) or (j) of the definition of “employee”…

 

 

[22]           Section 15(2)(b) of the Interpretation Act, R.S., 1985, c. l-4, reads as follows :

 

 

 

[23]           Based on this provision, the definition of “grievance” found in subsection 2(1) of the PSSR Act which extends the definition of employee to “any of the provisions of the Act respecting grievances” is an interpretation provision which should be construed as applying to all other enactments dealing with grievances for the Public Service employees since no contrary intention appears in the PSSR Act or the PSSRB Regulations.

 

[24]           Moreover, section 16 of the Interpretation Act states that “Where an enactment confers power to make regulations, expressions used in the regulations have the same respective meanings as in the enactment conferring the power”. Section 100(1)(c) of the PSSR Act confers the power to make regulations in relation to the procedure for the presentation of grievances, including regulations respecting the time within which a grievance may be presented. The only logical interpretation is that Parliament intended the regulations dealing with grievances to correspond to the section of the PSSR Act which deals with grievances. If the applicant’s proposed interpretation was adopted, then there would be no provisions in the PSSRB Regulations dealing with grievances for managerial employees.  This is clearly not what Parliament intended since it specifically expanded the definition in the PSSR Act to include such employees.

 

[25]           The expanded definition of employees set out in the definition of “grievance” applies to subsection 71(3) of the PSSRB Regulations and, therefore, the time limit set out in that subsection 7 applies to the applicant herein.

 

[26]           At the hearing, the applicant argued that the behaviour of senior members of the Department amounted to an agreement pursuant to section 63 of the PSSRB Regulations to extend the time limit to file a grievance on the matter of the applicant’s acting pay. The applicant submitted that he had raised the issue of acting pay with a number of his superiors, including the Assistant Deputy Minister, and that he was told the issue was being looked into.

 

[27]           The respondent submits that, even if the applicant’s superiors did tell him that they would look into the issue, this does not amount to an agreement to extend the time limit to file a grievance pursuant to section 63 of the PSSR Regulations.

 

[28]           I agree with the respondent. I am satisfied there is no evidence to suggest that there was an agreement to extend the timeline. The Assistant Deputy Minister’s decision on the timeliness of the grievance is to be reviewed on the standard of patent unreasonableness. She held that he knew of the circumstances giving rise to his grievance in July 2002. The applicant submitted that he was not aware until August 2002 when he received an amended posting confirmation that stated “acting does not apply”, whereas the respondent submitted that an amended confirmation stating that “acting does not apply” was sent out at the end of March 2002. Regardless of which date the applicant was notified that he would not receive acting pay, the applicant’s grievance was still not filed within the 25 day deadline. The Assistant Deputy Minister’s decision that the grievance was untimely is reasonable.

 

[29]           This judicial review can be dismissed on this issue alone; nonetheless, I have examined the Assistant Deputy Minister’s decision on the merits of the applicant’s grievance as well.

 

Standard of review for the decision to dismiss the grievance on its merits

[30]           The applicant argued that the appropriate standard of review of the Assistant Deputy Minister’s decision is correctness while the respondent argued that it is patent unreasonableness.

 

[31]           The first factor is the presence of a privative clause. As previously discussed, subsection 96(3) of the PSSR Act contains a relatively weak privative clause suggesting only some deference.

 

[32]           The second factor is the relative expertise of the decision-maker. The applicant submits that the Assistant Deputy Minister has less expertise resolving disputes than does this Court. Moreover, the applicant submits that there was no evidence that the Assistant Deputy Minister has any relative expertise in the resolution of grievances. The respondent submitted that the Assistant Deputy Minister had institutional expertise in the interpretation of Treasury Board Policy as a result of the 23 years of experience she had in the management of human resources in the Public Service and that the Court should give her some deference.

 

[33]           The applicant also submitted that the Federal Court of Appeal, in Assh at para. 44, held that the informal nature of the grievance process under section 91 of the PSSR Act and the fact that it is not independent of the employer suggests that a Court should not afford much deference to internal grievance board decisions on questions that are not purely factual in nature. I cannot give much weight to this fact considering that the Supreme Court of Canada, in Vaughan at para. 38, dismissed the appellant’s argument that comprehensive legislative schemes which do not provide for third-party adjudication are not, on that account, worthy of deference. The Court held that this is a consideration, but that in the case of the PSSR Act, this factor is outweighed by other more persuasive indications of clues to parliamentary intent suggesting that deference be given to the PSSR Act grievance scheme.

 

[34]           The Assistant Deputy Minister clearly has the expertise to determine whether a particular Treasury Board policy applies to the Department, particularly where the policy is related to her field of expertise, human resources. She does not, however, have more expertise than the Court since the Court has expertise in determining the scope and application of government enactments. Therefore, this factor suggests only a little deference be given to the decision-maker.

 

[35]           The third factor is the purpose of the Act and the provision in question. As previously noted, the purpose of the PSSR Act is polycentric. The provision in question here is section 5.3 of the Salary Policy. This provision is also polycentric as it is intended to provide government departments with some flexibility in staffing rotational positions. This factor suggests a high degree of deference.

 

[36]           With regards to the final factor, the applicant submits that the question is one of law since it is a question regarding the contractual employment relationship between the applicant and the respondent.  The respondent submits that the question at issue is one of fact, namely whether the deputy head of the Department has authorized the payment of acting pay to its executives in rotational pools.

 

[37]           I agree with the respondent that the question is whether the deputy head of the Department elected not to pay acting pay to executives in rotational positions under part 5.3 of the Salary Policy. However, I do not agree that this is a question of fact. The determination of whether the Deputy Minister “elected” under part 5.3 of the Salary Policy to exercise his discretion not to pay acting rotational EX employees acting pay is a question of mixed fact and law. This factor suggests that the Court need not exercise much deference towards the decision of the Assistant Deputy Minister.

 

[38]           Taken together, the four factors point to the standard of reasonableness simpliciter.

 

Decision to dismiss the grievance on its merits

[39]           The Assistant Deputy Minister considered the merits of the applicant’s grievance and held that the applicant was not entitled to receive acting pay as a rotational EX employee as it was never department practice to provide rotational EX employees acting pay and that the department was entitled to do this under section 5.3 of the Salary Policy which stated that the general policy is that EX employees in acting positions receive acting pay but that department heads can exercise their discretion and not give acting pay to employees in rotational EX employees.

 

[40]           The applicant urged the Court to adopt two general propositions. First, that there is a reasonable expectation of both an employer and of an employee that an employee is entitled to be paid the salary that is attached to the job and, second, that if the employer expects to pay the employee less than that, then there is an obligation by the employer to bring that to the employee’s attention at the outset, in clear and unmistakable terms.

 

[41]           The Salary Policy is evidence that the first proposition is Treasury Board policy. At issue here is the second proposition. Specifically, does the Salary Policy or the PSSR Act require the employer to bring it to the attention of the employee in clear terms when the employer intends to pay the employee less than the salary attached to the job? And if so, did the Deputy Minister do so?

 

[42]           The applicant submitted that no election was made by the Assistant Deputy Minister since an election under part 5.3 of the Salary Policy needs to be in writing to be effective (Gingras v. Canada, [1994] 2 F.C. 734 [Gingras]) or, alternatively, the election needs to be communicated (Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [2001] 4 F.C. 451 (F.C.A.)).

 

[43]           I am not persuaded by this argument mainly because both cases are easily distinguishable from this case. In Gingras, the decision under review was a decision not to give RCMP members the bilingual bonus. The Federal Court of Appeal in that case held that the Bilingual Bonus policy was not discretionary and had the force of law. Therefore, the decision not to apply the policy to RCMP members could not be made without a written evidence of the decision. This is not similar to the case here which deals with discretionary provisions within a Treasury Board policy. There is no doubt from the language in part 5.3 which states that “deputy head may elect not to implement this policy” that this provision is discretionary. I do not find Blueberry River to be relevant as it deals with elections in the context of estoppel.

 

[44]           There is nothing in the Salary Policy or its enabling statute, the Financial Administration Act, R.S., 1985, c. F-11, which suggests that “elects” requires more than a decision by a deputy minister. Although the evidence on whether or not a decision was made by the Deputy Minister is less than satisfactory, I cannot find that the Assistant Deputy Minister’s decision that an election had been made to be unreasonable. She reasonably came to this conclusion based on the fact that the Deputy Minister of the Department had twice turned down proposals that executives in rotational positions would receive acting pay and the fact that the department had never paid acting rotational EX employees acting pay.

V.    Conclusion

[45]           For the above reasons, I am satisfied that the Assistant Deputy Minister’s decision to dismiss the applicant’s grievance as untimely was not patently unreasonable and her finding that the applicant was paid appropriately was not unreasonable.

 

 

ORDER

 

THIS COURT ORDERS that the application for judicial review is denied with costs.

 

 

“Max M. Teitelbaum”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-2044-05

 

STYLE OF CAUSE:                          Michel Desloges v. Attorney General of Canada

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      December 4, 2006

 

REASONS FOR ORDER:               TEITELBAUM J.

 

DATED:                                             January 23, 2007

 

 

 

APPEARANCES:

 

Dougald E. Brown	FOR THE APPLICANT
Stéphane Hould	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Nelligan O’Brien Payne LLP Ottawa, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT