Docket: T-1971-10
Citation: 2011 FC 1465
Ottawa, Ontario, December 13, 2011
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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JADWIGA MAJDAN
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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]
The
present application for judicial review pertains to a classification grievance
decision of L. Seguin, Director General, Corporate Human Resources Policies and
Programs (the Director) at Public Works and Government Services Canada (PWGSC),
dated October 28, 2010. The Director’s decision adopted the recommendation of
the Classification Grievance Committee (the Committee) that the applicant’s
position be classified at the AR-05 group and level, retroactive to March 1,
2000.
BACKGROUND
[2]
The
applicant, Jadwiga Majdan, was employed by PWGSC from 2000 to 2007, and held
multiple positions during that time. In April 2004, she filed a job content
grievance because the generic work description (WD) for her position did not
correspond to her actual duties. The parties agreed to resolve the grievance
through a memorandum of understanding, which included an agreement to develop a
new specific WD for the applicant.
[3]
On
July 16, 2008, based on the applicant’s new WD, her position of Program Specialist/Manager
Level II was classified at the AR-05 group and level. On August 18, 2008, the
applicant filed a classification grievance pursuant to section 208 of the Public
Service Labour Relations Act, SC 2003, c 22, s 2.
[4]
On
June 16, 2009, the classification grievance was heard by the Committee. The
applicant gave oral testimony, and her representative, Dejan Toncic, made an
oral presentation. Mr. Toncic attests by affidavit that he submitted several
documents to the Committee, including three WDs submitted for relativity purposes
(the Relativity WDs). Marie-Josée Fournier, a member of the Committee, attests
by affidavit that the Relativity WDs were never submitted to the Committee. Mr.
Toncic also states that he submitted three WDs for comparator purposes (the
Comparator WDs), which the Committee accepted at the hearing without question
or challenge.
[5]
At
the hearing, the applicant told the Committee that Pierre Vaillancourt was not
her supervisor while she was working in the grieved position (GP), and
furthermore that Mr. Vaillancourt had an animus towards the applicant.
The respondent states that senior management submitted Mr. Vaillancourt as a
relevant person for the Committee to contact for the classification grievance.
Ms. Fournier stated in her cross-examination that the Committee explained to
the applicant that her personal issues with Mr. Vaillancourt were irrelevant.
[6]
On
July 22, 2009, the Committee met with Mr. Vaillancourt to obtain information
for the classification grievance. The Committee also sent Mr. Vaillancourt a
follow-up email requesting performance reviews and work plans to get a sense of
the applicant’s duties. Ms. Fournier states in her affidavit that she does not
remember ever receiving this information from Mr. Vaillancourt, and if the
Committee did receive it, they did not rely on it in their decision.
[7]
Mr.
Toncic emailed the Committee to reiterate the applicant’s position that Mr.
Vaillancourt was not the appropriate person to speak with in relation to the
grievance, as he was not her supervisor at the relevant time. The Committee
also met with two of the applicant’s other supervisors.
[8]
On
December 10, 2009, the Committee emailed the applicant with further questions related
to her duties and responsibilities while working in the GP. The applicant notes
that on two occasions, Mr. Toncic asked whether the Committee had concerns with
her WD, and the Committee responded that it was not challenging the WD.
IMPUGNED DECISION
[9]
By
letter dated October 28, 2010, the Director informed the applicant that the
Committee had unanimously recommended that the GP be classified at the AR-05
group and level. The Director stated that he approved this recommendation,
which was effective retroactively to March 1, 2000. A copy of the Committee’s
report was attached.
[10]
In
the report, the Committee summarized the presentation by Mr. Toncic. He
submitted that the GP corresponded to a higher AR level than it was currently
classified – specifically, level 6. In support of that argument, Mr. Toncic
provided background information on the applicant’s WD, one of the Relativity
WDs (RPS10700), the Comparator WDs, and the characteristic assignments and
responsibilities of the GP.
[11]
The
Committee then reviewed the information supplied by management, including the information
provided by Mr. Vaillancourt. The Committee noted the applicant’s submission
that Mr. Vaillancourt was not her supervisor at the relevant time.
[12]
The
Committee noted that it had concerns about the applicant’s WD, and so it had
sought further information from the applicant and management to clarify the
essence of the work assigned to the GP. The Committee stated that its
discussions focused on these clarifications and explanations from the parties about
the applicant’s actual duties. The Committee then analyzed the GP in relation
to positions it found to be relevant comparators.
[13]
The
Committee’s analysis of the appropriate level at which to classify the GP is
thorough and complex. Essentially, the Committee found that the GP was most
closely akin to a Project Manager at level 5 (although the Committee
acknowledged the difficulty of comparing project-based and program-based
positions). The Committee found that the similarity in knowledge required, the
level of responsibilities, and the provision of strategic and technical advice
made this the appropriate comparator. The Committee found that the GP was at a
lower level than BM 9 (level 6), which is more akin to a Senior Project
Manager.
[14]
The
Committee did not accept Mr. Toncic’s argument that the complexity of the applicant’s
work in the GP merited a higher classification, finding instead that the
requirements for the GP were comparable to the requirements at level 5.
[15]
The
Committee found that it could not consider the three Comparator WDs submitted
by the applicant: the Specialist, Consultant Professional Advisor (AR-06) WD
was a draft WD with no management signature, and had never been officially
evaluated. The Manager, Buildings Structures and Services (AR-07) WD was found
to be classified as EN-ENG-06 (engineering) and not AR-07 (architecture), and
therefore was evaluated by a different classification standard. The Manager,
Regional Operations Support and Commodity Management (AR-07) WD was rejected
because there was no position with this title in PWGSC. Contrary to the
applicant’s claim that this was a draft WD for one of the her supervisors, Jacques
Leclerc, the Committee found that Mr. Leclerc’s title was Director, Project and
Contract Management Services, and also that this position had been abolished.
[16]
The
Committee concluded that based on the duties and responsibilities of the GP, it
was appropriately classified at the AR-05 group and level.
ISSUES
[17]
The
applicant raises the following issues in this application:
1. The Committee
breached its duty of fairness;
2. The
Committee ignored relevant evidence, while considering irrelevant evidence,
which renders the impugned decision unreasonable.
[18]
Because
of my conclusions regarding the duty of fairness, it is not necessary to deal
with the applicant’s subsidiary proposition that the impugned decision is
unreasonable.
BREACH OF FAIRNESS ISSUE
[19]
A
breach to the duty of fairness is not subject to deferential standard of review
because it is a fundamental procedural requirement: Maurice v Canada (Treasury
Board),
2004 FC 941, 267 FTR 107. The Court finds that the submissions made by the
applicant in respect of this issue are well founded and that there has been a
breach of procedural fairness. I will first start my analysis with a brief
summary of the parties’ respective positions on this issue.
Applicant
[20]
The
applicant submits that the Committee had a duty to act fairly, although he
concedes that duty lies at the lower end of the spectrum. The applicant submits
that this duty requires the Committee to afford the applicant an opportunity to
make submissions on additional or contradictory evidence relied on in its
decision: Maurice, above, at para 32; Bulat v Canada (Treasury
Board)
(2000), 252 NR 182, 95 ACWS (3d) 99 (FCA).
[21]
The
applicant submits that the Committee breached its duty of fairness in four
instances:
(a) It denied her
the opportunity to respond to information provided by Mr. Vaillancourt;
(b) It failed to
notify her of its rejection of the Comparator WDs, and thus she could not
respond to the reasons for that rejection;
(c) It denied her
the opportunity to respond to the information provided by Mr. Leclerc about the
GP; and
(d) It did not
notify her of its concerns about her WD, despite the fact that her
representative inquired on two occasions whether it had concerns.
[22]
The
applicant submits that her presentation at the hearing was based on her belief
that the content of her WD was accepted, since it had been approved by her and
management. The applicant submits that the Committee never informed herself or
her representative of information it had obtained after the hearing that
contradicted the characterization of her position in the WD. In this regard,
the applicant notes in particular the information obtained from Mr.
Vaillancourt, which the applicant emphasizes Ms. Fournier admitted to relying
upon to some degree in the decision.
[23]
Regarding
the Committee’s reason for rejecting the Comparator WDs, the applicant notes
that one of the WDs relied upon by the Committee in its relativity analysis was
also a draft WD, and was also classified under the engineering (EN) standard.
Thus, the applicant submits, it was not self-evident that the Committee could
not consider the Comparator WDs because they were drafts or were classified
under the EN standard.
[24]
The
applicant also submits that, had the Committee informed the applicant or Mr.
Leclerc of its belief that the position of Manager, Regional Operations Support
and Commodity Management (AR-07) did not exist, either of them could have
clarified that this was in fact the title of Mr. Leclerc’s position at the
relevant time.
Respondent
[25]
The
respondent submits that there has been no breach of the duty of fairness. The
respondent mostly relies on Begin v Canada (Attorney
General),
2009 FC 634, to submit that there is no right of reply in response to new
information if the grievor will only be reiterating her previous arguments.
Thus, regarding Mr. Vaillancourt’s evidence, the respondent submits that his
information was not new or central to the Committee’s decision, and therefore
the applicant had no right of reply.
[26]
Regarding
the Comparator WDs, the respondent submits that the applicant should have known
that the Committee cannot rely on draft WDs that have not been officially
evaluated, nor can it rely on WDs evaluated by a different classification
standard. Thus, the failure to bring these issues to the applicant’s attention
did not amount to a breach of the duty of fairness.
[27]
Regarding
Mr. Leclerc’s information, the respondent submits that his information was not
inconsistent with the information provided by the applicant. The respondent
notes that Mr. Leclerc never explicitly stated at what level the GP should be
classified, but rather provided information on the duties and responsibilities
of the GP. Thus, the respondent again submits there was no right to reply to
this information.
[28]
Finally,
the respondent submits that the applicant was made aware of the Committee’s
concerns about her WD. The respondent directs the Court to emails from Ms.
Fournier to the applicant, which asked for further clarification about the
duties and responsibilities of the GP. Thus, the applicant cannot claim to have
had no notice of the Committee’s concerns.
Analysis
[29]
Having
considered the evidence, analysed the impugned decision, considered the
relevant case law and the parties’ arguments, this is a case where the
intervention of the Court is warranted. Subject to what is otherwise stated in
the following paragraphs, the Court wholly endorses the applicant’s
argumentation.
[30]
I
will begin by restating that the case law is clear that a breach of the duty of
fairness by the Committee will vitiate the decision: Maurice, above, at
para 11. The cases are also consistent in their articulation of the content of
the duty of fairness in a classification grievance—the duty lies at the lower
end of the spectrum, but nonetheless requires that the Committee afford the
grievor an opportunity to respond to any additional or contradictory
information it will rely upon in its decision.
[31]
One
such articulation of this principle can be found in Bulat, above, at
para 10:
An elementary incident of the duty of
fairness is that the individual adversely affected should have an adequate
opportunity to address an issue that the Committee regarded as central to the
disposition of the grievance, but which the grievor did not realise was in
dispute and therefore could not have been reasonably expected to anticipate,
and to address.
[32]
Thus,
in order to find a breach of the duty of fairness, the Court must find that the
Committee based its conclusion on information to which the grievor had no
opportunity to respond. The relevant question is whether the grievor could
reasonably have been expected to know that the issue was in dispute, and
therefore address the issue in her submissions to the Committee. If the
undisclosed information is found to have somewhat taken the grievor by
surprise, and was material to the Committee’s conclusion, the decision must be
set aside. This is such a case.
[33]
In
Bulat, above, the undisclosed information was a manager’s statement that
some tasks the grievor performed were voluntary and not part of his actual job
description. Thus, the manager narrowed the grievor’s duties in a way that
merited a lower classification, without the grievor’s knowledge. This, the
Court found, was central information that could not have been anticipated and
addressed by the grievor.
[34]
In
Maurice, above, the undisclosed information was the fact that the Committee
could not consider the grievor’s proposed comparator because it had not been
submitted in an acceptable format. The Court found that the Committee should
have advised the grievor that it could not consider her substantive arguments
about the comparator because of the format problem, and afforded her an
opportunity to make additional submissions.
[35]
Based
on the principles from these cases, I find that the Committee’s rejection of
the Comparator WDs, without notice to the applicant, breached the duty of
fairness. As the applicant submits, the Committee accepted the Comparator WDs
at the hearing without question or challenge, and did not alert the applicant
at any point to the fact that it could not consider them.
[36]
Although
there may be some differences, this scenario is somewhat similar to that in Maurice,
above: in that case, the Committee rejected the proposed comparator because it
was not dated or signed by a classification officer, and not accompanied by an
adequate job description. The Court stated in that case at para 35:
In the particular circumstances of this
case, and taking into account inter alia:
(i) the absence of any guideline
on the form or content of the description of duties to be submitted so that a
current position may be considered by the Committee;
(ii) the fact that in the absence
of evidence in this regard, the Court may infer that at the meeting the
Committee raised no problem of form or lack of clarity in the comparison of
positions put forward by the applicant, and that as indicated in Mr. Guérin's
affidavit she remained under the impression that she had clearly compared her
description of duties with that of other employees to whom her duties were
transferred, including Ms. Martin: accordingly, she expected that the substance
of her argument would be analysed;
(iii) the Committee should have the
best possible information to ensure that its decision is fair and equitable;
(iv) giving notice or a short
deadline to the applicant for providing additional information is not an
excessively burdensome requirement: it should not unduly compromise or delay
resolution of the grievance;
the Court concludes that the Committee
should have informed the applicant that it could not consider her arguments
because the evidence submitted was not in an acceptable form and given her a
short period of time to provide additional information.
[37]
Similarly,
in the decision under review, the Committee rejected all three proposed
comparators on grounds not previously disclosed to the applicant. The
Committee’s reasons for rejecting the comparators were similar to the reasons
in Maurice – in two cases, the comparators were not dated and signed,
and thus were not official. As the Court found in Maurice, there is very
little guidance on how to present comparators to the Committee, and therefore it
would not have been burdensome to inform the applicant that the Comparator WDs
could not be considered in their presented form. Nor was there any suggestion
at the hearing that the Committee intended to discard the comparators because
they were not relevant and that other comparators should be submitted.
[38]
This
is particularly true, given the very long length of time the applicant’s
grievance was under consideration by the Committee. The hearing took place on
June 16, 2009, and the decision was not rendered until October 28, 2010. In the
intervening time, the Committee was in contact with the applicant and her
representative on multiple occasions. Thus, there is no question the Committee
could have advised the applicant of the problems with her proposed comparators,
and given her the opportunity to address those problems.
[39]
Moreover,
I am not persuaded that it was self-evident that the Committee would have to disregard
the Comparator WDs because they were drafts or they were otherwise irrelevant.
The Committee went to great lengths to investigate the reality of the
applicant’s position, rather than just relying on what was written in her WD.
Why then was the Committee required to immediately disregard the Comparator WDs
because they said ‘DRAFT’, rather than investigate them further to determine if
they were useful in the Committee’s inquiry? Thus, in relation to its rejection
of the Comparator WDs, the Committee breached its duty of fairness.
[40]
I
find that the Committee also breached its duty of fairness by not providing the
applicant with an opportunity to respond to the information obtained from Mr.
Vaillancourt. The respondent acknowledges that the Committee sought information
from Mr. Vaillancourt to clarify the applicant’s duties while she worked in the
GP. However, the respondent submits, he did not provide the Committee with any
useful information and therefore the Committee did not need to inform the
applicant of this information and provide her with an opportunity to respond.
[41]
However,
the Committee referred to the information supplied by Mr. Vaillancourt in its
decision:
Mr. Vaillancourt confirmed that the
grievor’s primary duties were included in some of the key activities of the
work description. He also substantiated some of the information as it relates
to the activities. However, he emphasized that the GP primarily exercised a
participatory role as expert in the planning and development of strategic
frameworks for the Branch.
[42]
Thus,
contrary to the respondent’s submission, Mr. Vaillancourt’s information was not
completely duplicative of the information presented by the applicant. In the
final sentence, Mr. Vaillancourt characterized the GP as involving the
provision of expert advice, as opposed to a leadership or management role. This
was not benign or neutral information – Mr. Vaillancourt characterized the GP
in a way that would clearly merit a lower classification than that proposed by
the applicant.
[43]
Thus,
I do not accept the respondent’s argument that Mr. Vaillancourt’s information
had no effect whatsoever to the Committee’s determination. Rather, I find that
this is similar to the undisclosed information in Bulat, above – the
manager in that case provided information that supported a lower classification
than the grievor sought. Similarly in this case, Mr. Vaillancourt’s information
was clearly detrimental to the applicant’s grievance (which is particularly
problematic given the fact that he was not her supervisor, and apparently had
an animus towards her).
[44]
Ms.
Fournier was equivocal under cross-examination regarding whether the Committee
relied on Mr. Vaillancourt’s information in its deliberations. She states at
one point that he “wasn’t able to give us information other than confirming
duties that she had been assigned to while he was supervising her”; however,
she went on to say: “It’s hard to explain. We took it into consideration in the
sense that there were certain parts that he was able to explain to us regarding
the work.” I thus find that I cannot rely on Ms. Fournier’s evidence to
conclude that the Committee did not rely on Mr. Vaillancourt’s information. Furthermore,
the presence of this information in the Committee’s decision supports the
conclusion that the information was relied upon, which triggers an obligation
on the part of the Committee to inform the applicant of this information.
[45]
The
Committee’s decision gives the impression that the applicant was advised of Mr.
Vaillancourt’s information and given an opportunity to respond:
The grievor was offered the opportunity
to respond to this information and explained that Mr. Vaillancourt was not her
supervisor relative to those duties as described in the MOU.
[46]
However,
Ms. Fournier admitted under cross-examination that the Committee only informed
the applicant of the fact that it had met with Mr. Vaillancourt; the Committee
did not inform the applicant of the content of information supplied by Mr.
Vaillancourt. Thus, I find that in this regard the Committee also breached its
duty of fairness.
[47]
Even
if there is a low standard of fairness in classification grievances, this is
one of those cases where the Committee simply gave lip service to its duty.
CONCLUSION
[48]
For
these reasons, the present application shall be allowed by the Court. The
Director’s decision shall be set aside, and the matter referred back for re-determination
by another adjudicator. The newly constituted Committee must hear the applicant
before making any final recommendation. The parties have informed the Court
that they have an agreement that the successful party be awarded $4500 in costs
– thus, costs are awarded to the applicant in that amount.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The present
application is allowed by the Court.
2. The
Director’s decision is set aside, and the matter is referred back for
re-determination by another adjudicator;
3. The newly
constituted Committee must hear the applicant before making any final
recommendation;
4. The applicant
is awarded $4500 in costs.
“Luc
Martineau”
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