Date: 20070319
Docket:
T-2170-05
Citation: 2007
FC 293
Ottawa, Ontario, the 19th day of March
2007
Present:
The Honourable Mr. Justice Blais
BETWEEN:
ROGER GROULX
Applicant
and
MARCEL CORMIER
and
ATTORNEY GENERAL OF CANADA
and
DEPARTMENT OF VETERANS AFFAIRS CANADA
and
PUBLIC SERVICE HUMAN RESOURCES
MANAGEMENT AGENCY OF CANADA
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review filed under section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7, against a decision dated November
3, 2005, of Marcel Cormier, Director General of Human Resources, Veterans
Affairs Canada, in his capacity as the Deputy Head’s Nominee for Classification
Grievances. In this decision, Mr. Cormier notified the applicant that he
had accepted the recommendation of the Classification Grievance Committee to
maintain the classification of the applicant’s position at the HS-HDO-04 level,
thereby dismissing the applicant’s classification grievance (DVA-2005-00003).
RELEVANT
FACTS
[2]
During the
relevant period, Roger Groulx (the applicant) held a position as a computer and
maintenance storesperson in the Department of Veteran Affairs at Ste. Anne’s
Hospital.
[3]
On
February 21, 2005, the applicant received an update of his work description and
the results of a re-evaluation of his classification for this position, which
was maintained at the HS‑HDO-04 level.
[4]
As stated
in the Treasury Board Secretariat’s Classification System and Delegation of
Authority Policy, the level of a position within the federal public service shall be established by the evaluation of the work description for
that position through the use of the appropriate classification standard as
determined by the relevant occupational group definition for that standard. In practice, each position
must first be assigned to a specific occupational group. The position is then
assessed on the basis of a list of criteria, and a degree is awarded for each
criterion by means of a comparison with certain benchmark positions. Each
degree corresponds to a certain number of pre-determined points, and the
classification level is established by adding up the points obtained under each
criterion.
[5]
On March
18, 2005, the applicant filed a grievance seeking a reclassification of his
position according to the GS classification standard, in compliance with the
1991 decision of the Human Rights Tribunal.
[6]
The GS
(General Services) classification standard applies to the evaluation of HS
(Hospital Services) positions, according to the Treasury Board directive dated
November 5, 1991, implementing the decision of the Human Rights Tribunal in
Public Service Alliance of Canada v. Treasury Board, [1991] D.C.D.P.
No. 4.
[7]
Following
the filing of the applicant’s grievance, a Grievance Classification Committee
(the Committee) was appointed under Section V(c) of the Treasury Board’s
Classification Grievance Procedure. The Committee was made up of a chairperson,
Yvon Forest, a classification consultant with at least 20 years of experience
in the field of classification in the federal public service; Bernard Groulx, a
classification grievance adviser in the Public Service Human Resources
Management Agency of Canada; and Julie Gadoury, a department head at
Ste. Anne’s Hospital who was not involved in supervising the applicant.
[8]
On
September 8, 2005, the applicant submitted his arguments to the Committee for a
reclassification at the HS-HDO-08 level. The applicant contested the score
given when the classification level was reassessed for the factors “Knowledge
and Judgment”, “Specific Vocational Training”, “Resources and Services”,
“Safety of Others” and “Supervision”.
[9]
After
analyzing all the factors, the Committee concluded that the applicant’s
position should be classified at the HS-HDO-04 level. The Committee considered
the applicant’s main arguments but concluded that they did not warrant a higher
classification level. The Committee did not consult with management to obtain
additional information but stated that it relied solely on information provided
by the applicant, the applicant’s official work description and the applicable
GS standard.
[10]
In a
letter dated November 3, 2005, the Deputy Head’s Nominee for Classification
Grievances concluded that a detailed evaluation of the position in question had
been made and that the Committee’s recommendations reflected a fair and
balanced application of the classification standard in question.
ISSUES
[11]
This
application for judicial review raises the following issues:
(1) Did the Committee
breach a principle of natural justice or procedural fairness?
(2) Did the Committee
make a reviewable error in its reasons?
(3) Did the
Committee err in its application of the questions concerning the right to pay
equity?
STANDARD OF REVIEW
[12]
On the
issue of the standard of review applicable to a decision of a classification
grievance committee tasked with ruling on the merits of a classification
grievance, I agree with the analysis made by Mr. Justice Michael L.
Phelan in Adamidis v. Canada (Treasury Board), 2006 FC 243, [2006]
F.C.J. No. 305 (QL), of which I reproduce paragraphs 18 to 24:
¶ 18
In large measure, I adopt Justice Blanchard's analysis of the applicable
standard of review of decisions of a classification committee in Trépanier
v. Canada(Attorney General), [2004] F.C.J. No. 1601; 2004 FC 1326.
In that case, Justice Blanchard found the standard of review to be patent
unreasonableness in respect of the calculation of a deadline to be met.
¶ 19
With respect to the existence and
nature of a private clause, s. 96(3) of the Public Service Staff Relations
Act (Act) provides:
96. (3) Where a grievance has been presented up to and
including the final level in the grievance process and it is not one that under
section 92 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 thereon.
***
96. (3) Sauf dans le cas d'un grief qui peut être
renvoyé à l'arbitrage au titre de l'article 92, la décision rendue au dernier
palier de la procédure applicable en la matière est finale et obligatoire, et
aucune autre mesure ne peut être prise sous le régime de la présente loi à
l'égard du grief ainsi tranché.
¶ 20
While this may not be the strongest privative clause, it does indicate an
intention to curtail further review to some extent and to ensure that a
grievance decision is final and binding.
¶ 21
Of greater importance in this case are the other three factors in the pragmatic
and functional analysis - expertise, purpose of legislation and its relevant
provision, and nature of the question.
¶ 22
If the calculation of a deadline is a purely factual matter requiring
expertise, as found in Trépanier, then the actual application of the
classification system is even more a matter of expertise. It required expertise
in classification, and a thorough knowledge of the policies, procedures and
organization of government employees and their functions.
¶ 23
The purpose of the legislation is polycentric “as it is intended to resolve
questions involving contradictory policy objectives or interests of different
groups, and its purpose is not just to oppose the government to the
individual”.
¶ 24
As to the fourth factor, the nature of the question is somewhat less factual
than the calculation of a deadline but in this case it actively engages factors
two and four together. The weighting of job functions includes knowledge of the
facts of each function. More importantly, the selection of comparators is an
area of expertise (much as would occur in a commercial appraisal case) and one
based on expert evidence which established matters of fact. The question being
asked by the Applicants is whether the Committee carried out its selection,
weighting and analysis properly. This is a matter deserving of considerable
deference at the patent unreasonable level of review. (See Laplante v. Canada(Canadian
Food Inspection Agency), [2004] F.C.J. No. 1640; [2004] FC 1345.)
[13]
The
standard of review applicable to the decision of the Committee is therefore
that of patent unreasonableness. Accordingly, the Court must consider the
Committee’s decision as a whole and intervene only if the applicant shows that
the decision was based on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it.
[14]
However,
if the Court concludes that there was a breach of procedural fairness, the
application for judicial review will be allowed, because it is well established
that the standard of review applicable to issues of natural justice and
procedural fairness is that of correctness (Canadian Union of Public
Employees (C.U.P.E.) v. Ontario
(Minister of Labour),
[2003] 1 S.C.R. 539, at paragraph 100).
ANALYSIS
(1) Did the Committee breach a principle
of natural justice or of procedural fairness?
[15]
The
applicant alleged that the rules of procedural fairness and of natural justice
were not respected by the Committee. From this point of view, he claimed that
the Committee definitely considered evidence concerning his supervisory
responsibilities, which it obtained without his knowledge and which he did not
have an opportunity to contradict.
[16]
The
respondent submitted that there was no breach of the principles of natural
justice and of procedural fairness and submitted as evidence of this the
affidavit of Bernard Groulx, a member of the Committee, who confirmed that the
Committee used only information given by the applicant, and that the issue of
the degree of supervision had been dealt with at the hearing. Because Bernard
Groulx had not been cross-examined on his affidavit, and in the absence of any
other evidence on record about this question, the respondent submitted that the
Court had no reason to doubt the veracity of his statement, and therefore the
respondent’s argument must be rejected.
[17]
First of
all, it is important to determine the scope of the duty of procedural fairness
in the context of a decision of a classification grievance committee. The
Federal Court dealt with this issue in Chong v. Canada (Attorney
General), (1995), 104 F.T.R. 253, [1995] F.C.J. No. 1600 (QL). At
paragraph 40 of this decision, Mr. Justice William P. McKeown concluded as
follows:
¶40. In my view, the case before me
involves an administrative decision as opposed to a judicial or quasi-judicial
decision and, therefore, the applicants are only entitled to a minimum level of
fairness. The applicants submitted that they were entitled to know the case
against them and to have an opportunity to make representations in respect of
that case and to be informed of the decision. The applicants submit that they
did not receive the first two. In my view, there is no case to be met in the
case before me. Management is entitled to detail the description of the job.
Parliament has specifically recognized this by excluding classification
grievances from the adjudication procedures. The onus is on the applicants to
make the case that the classification was wrong. In my view, the procedures
provided by the Treasury Board here meet the requirements of fairness as set
out by Sopinka J. in Prassad, supra. The grievors are given
an opportunity to be heard. There is no restriction on their participation.
They are provided with all the material from the departmental classification
committee. Management is not permitted to argue for or against the
classification selected. Management is only permitted to answer such questions
as may be directed to it by the committee. It is not an adversarial process
and, therefore, it is appropriate that both the grievors and management should
answer questions in the absence of the other . . . .
[18]
In Chong
v. Canada (Attorney General) (1999), 236 N.R. 371, [1999] F.C.J.
No. 176 (QL), the Federal Court of Appeal confirmed that the content of
such a committee’s duty to act fairly is “somewhere in
the lower zone of the spectrum”.
[19]
Therefore,
the respondent is right in stating that there is well established case law to
the effect that the nature of the process before the Committee tends to
indicate a lower level of procedural guarantees. These guarantees are limited
to the applicant’s right to have his main arguments considered by the Committee
and to be advised of information crucial to the case and of which he could not
reasonably have knowledge.
[20]
At the
teleconference on September 8, 2005, the applicant was accompanied by his legal
adviser. He had the opportunity to file written arguments, namely a 21-page
document entitled [translation] “Arguments
for the Classification Grievance”, together with 28 appendices, and to make
oral submissions. In its deliberations, the Committee considered the official
work description as well as the applicant’s submissions. In its decision, the
Committee summarized the applicant's presentation and then considered each one
of the evaluation factors individually in relation to the benchmark position
descriptions to determine the appropriate degree and the number of
corresponding points. Following this analysis, the Committee concluded that the
classification of the position should be maintained at the HS-HDO-04 level. In
fact, the Committee stated that [translation]
“the scores represent a fair application of the classification standard for
Operational Services and are in harmony with departmental relativities for
positions within the same group”.
[21]
The
Classification Grievance Procedure issued by the Public
Service Human Resources Management Agency of Canada states that the complainant
and/or the complainant’s representative must have the opportunity to submit a
presentation in person or in writing. However, there is no provision in the
Procedure giving management the opportunity to make such a presentation. A
management representative must simply be available to answer the Committee’s
questions.
[22]
In his
affidavit, Bernard Groulx affirmed that [translation]
“the members of the Committee did not have to obtain and did not obtain
information from management for the purpose of processing the grievance of
Roger Groulx”. Although the Court is not required to accept affidavit evidence
merely because the affiant has not been cross-examined, a presumption of
credibility nevertheless exists (Bath v. Canada, [1999] F.C.J. No. 1207
(QL), at paragraphe12). In addition, it is important to note that if the
Committee was not convinced by the arguments submitted by the applicant, then
logically it was not necessary for the Committee to question the employer,
because as affirmed by McKeown J. in Chong, supra, the
burden of proving that the classification was erroneous rested with the
applicant.
[23]
In short,
the applicant had the right to a hearing before an impartial and expert
decision-maker, who rendered a detailed decision based on his arguments and on
the official work description which he was familiar with and accepted.
Therefore, the Committee rejected the applicant’s allegations about his
supervisory responsibilities on the basis of information of which he was aware.
[24]
Accordingly,
I must conclude that the applicant’s right to procedural fairness was respected
by the Grievance Classification Committee.
(2) Did the Committee make a
reviewable error in its reasons?
[25]
In his
memorandum, the applicant submitted a detailed analysis of the five contested
factors in order to show that the Committee made a mistake in its evaluation.
He reiterated the evidence submitted to the Committee and basically stated that
if the Committee was not convinced by this evidence, it was because the
Committee members had received additional evidence that was unknown to the
applicant. In the alternative, the applicant submitted that the Committee’s
erroneous decision shows that the members did not have the competency and the
knowledge of the classification system necessary for the performance of their
duties.
[26]
The
respondent submitted that the Committee’s decision was not patently
unreasonable. The respondent noted that it is not up to the Court to redo the
Committee’s analysis, because assessing the evidence was the role of the
Committee, which had to rely on the content of the work description after
having confirmed that it was accurate, rather than on external evidence which
contradicted this document. According to the respondent, nothing in the
Committee’s analysis shows that it was unaware of or refused to acknowledge the
applicant’s tasks under the work description. The Committee’s analysis
concerned, as it should have, the weight attached to these tasks in relation to
the various benchmark positions provided for comparison purposes in the
classification standard. Accordingly, the applicant did not discharge his
burden of showing the unreasonableness, let alone the patent unreasonableness,
of the Committee’s decision.
[27]
Having
thoroughly analyzed every detail of the Committee’s decision and the parties’
submissions, I essentially agree with the respondent’s position to the effect
that the applicant did not succeed in showing that the Committee's decision was
patently unreasonable. Having said this, I do not intend to conduct a detailed
analysis of this decision to answer every one of the applicant’s allegations. I
am of the opinion that the only aspect which is really worthy of attention,
because it was pivotal in the Committee’s decision, was the controversy
concerning the number of employees supervised by the applicant and its impact
on the decision.
[28]
In his
written submissions to the Committee, the applicant stated that he could
supervise up to eight employees and that the scope of his supervisory
responsibilities were more in keeping with the description of supervision tasks
at Degree C rather than Degree B. However, the Committee concluded that the
applicant’s position supervised only one employee at the HS-HDO-03 level and
that he was called on to supervise the other employees only when his own
supervisor was absent. Therefore, the Committee did not take the applicant’s
allegations into consideration, since occasional supervision is not scored, and
it proceeded to compare this position with the benchmark positions.
Accordingly, the Committee concluded that the applicant’s supervisory responsibilities
were not equivalent to those of the benchmark positions at Degree C.
[29]
As
mentioned in the Committee’s decision and in the affidavit of Bernard Groulx,
the Committee confirmed the work description’s accuracy with the applicant,
that is, that this work description truly reflected all the activities
performed in the course of his work. In his affidavit, the applicant confirmed
that he did not contest the content of his work description. Under the heading
“Key Activities”, it was specified that the applicant’s supervisory tasks
included the following:
[translation]
Supervises the work performed by staff,
determines work priorities, distributes and assigns the work of a stores
attendant (HS-HDO-03); motivates staff, defines expectations, appraises
performance and offers constructive feedback; trains staff (employees and/or
students).
Under the heading “Leadership of Human Resources”, the
applicant’s tasks were described as follows:
[translation]
Supervises the work performed by staff;
assigns work and establishes priorities and schedules; assign the work of a
stores attendant (HS‑HDO-03); appraises performance and participates in
determining training needs; conducts follow up to ensure that staff members
perform their work appropriately. Participates in maintaining an effective and
healthy work environment, maintains the morale of staff members in their
functions and motivates them. Participates in the selection and hiring of new
employees. This responsibility is shared.
Orients and trains new staff members;
demonstrates work procedures and trains staff members in safety practices and
the safe handling of materials and equipment such as lift trucks, hand trucks;
explains to employees work practices and procedures concerning the standards
applicable in the sector. Promotes and ensures the occupational health and
safety of staff members, for example, by providing information about
occupational health and safety, including WHMIS. This responsibility is
shared.
[30]
The Court
also notes that the applicant submitted, in an annex to his written submissions
to the Committee, the official organization chart of the Financial and Material
Resources Directorate at Ste. Anne’s Hospital. This document shows that
there were in fact three HS-HDO-03 positions reporting to an employee at the
HS-HDO-04 B2 level, namely, the applicant. Therefore, contrary to the
applicant’s allegations, this organization chart does not establish that he
supervises eight employees either. That being said, the applicant submitted a
different organization chart as an annex to his affidavit, which shows eight
positions at the HS-HDO-03 level reporting to two employees at the HS-HDO004 B2
level, namely, the applicant and another employee. However, it is important to
note that this second organization chart had never been submitted in evidence
before the Committee.
[31]
If the
Committee had ignored clear evidence that the applicant supervised eight
employees to determine that he in fact supervised only one employee, it would
perhaps be appropriate to conclude that the Committee’s decision was patently
unreasonable. However, in the present situation, the applicant’s official work
description referred to only one employee at the HS-HDO-03 level and mentioned
shared responsibility, whereas the organization chart appeared to show perhaps
three HS-HDO-03 positions reporting to the applicant’s position. In addition,
the applicant admitted on cross-examination that there were two positions at
the HS-HDO-04 level to which employees of his group at the HS-HDO-03 level
reported, which indicates a shared supervisory role. In his affidavit, Bernard
Groulx affirmed that the applicant had told the Committee that [translation] “he occasionally
supervised other employees, depending on the workload”.
[32]
At worst,
the Committee erred by ignoring the information in the organization chart
submitted by the applicant, which appears to show that he supervised three
employees. However, considering the applicant’s exaggerated statements to the
effect that he [translation]
“most definitely” supervised eight employees, and his admission to the effect
that this supervision was shared and occasional, it was not unreasonable for
the Committee to base its decision on the applicant’s official work
description. Likewise, it was not unreasonable for the Committee to conclude
that the applicant’s supervisory or oversight duties were rather restricted and
that his position could not be compared in this respect with that of a
foreperson who leads teams made up of numerous employees and whose key function
is supervision.
[33]
The
applicant also stated that he could have adduced evidence before the Committee
to the effect that his supervisor had been on extended sick leave since the
year 2000, and that therefore he assumed considerably more supervisory
responsibilities than was mentioned in his work description. On this point, it
is important to note, once again, that the applicant confirmed the accuracy of
his job description, so it is too late to contest it. In addition, the fact
that the Committee was unaware of evidence that was not submitted to it cannot
render the decision patently unreasonable.
[34]
In Adamidis
v. Canada (Treasury Board), [2006] F.C.J. No. 305 (paragraph 29),
Mr. Justice Michael L. Phelan considered the question of whether or not a
decision of the Grievance Classification Committee was patently unreasonable
and made the following conclusion:
In essence, the Applicants have a simple
disagreement with the Committee's analysis and conclusions. There is no basis
for concluding that the Committee misapprehended positions or relevant
evidence. This disagreement is insufficient grounds to warrant Court review of
the decision . . . .
[35]
In my
view, such a conclusion is just as appropriate in the case at bar. It is clear
that the applicant does not agree with the analysis and the assessment of the
evidence by the Committee. The respondent is right in stating that it is not
the role of the Court to reassess the evidence. The burden is rather on the
applicant to show the Court that the Committee erred to such an extent that its
decision was patently unreasonable. He did not discharge this burden.
(3) Did the Committee err in its
application of the questions concerning the right to pay equity?
[36]
The
applicant also stated that the Committee did not respect the decision of the
Human Rights Tribunal in Public Service Alliance of Canada v. Treasury Board,
supra, concerning the right to pay equity and thereby perpetuated
discrimination.
[37]
Such an
argument goes against the statement made by the Committee, which declared in
its report that it had complied with the Treasury Board directive dated
November 5, 1991. In addition, in his affidavit, Bernard Groulx confirmed that
the Committee had applied the GS standard, as required by this directive, to identify
the benchmark positions for the purposes of its analysis.
[38]
On this
point, I agree with the submission of the respondent to the effect that, in
applying the GS classification standard to the applicant’s position, it could
not have discriminated against the applicant as alleged, and that this argument
is therefore unfounded. As mentioned by the respondent, the Committee did not
have any jurisdiction concerning pay equity other than applying the GS
classification standard, because issues concerning pay equity cannot be subject
to a grievance under section 208 of the Public Service Labour Relations
Act, S.C. 2003, c. 22, section 2, which provides as follows:
|
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.
|
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.
|
|
(3) Despite subsection (2), an employee may
not present an individual grievance in respect of the right to equal pay for
work of equal value.
|
(3) Par dérogation au paragraphe (2), le fonctionnaire ne peut
présenter de grief individuel relativement au droit à la parité salariale
pour l’exécution de fonctions équivalentes.
|
[39]
For all
these reasons, the application for judicial review must therefore be dismissed.
ORDER
1.
The
application for judicial review is dismissed;
2.
With costs
to the respondent.
“Pierre Blais”
Certified
true translation
Michael
Palles
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