Date: 20080215
Docket: T-1823-06
Citation: 2008 FC 202
Ottawa, Ontario, February 15,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
FRANCE GILBERT
Applicant
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
as
represented by TREASURY BOARD
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
France Gilbert seeks judicial review of a decision of the Director of
the Organization and Classification Directorate of the Royal Canadian Mounted
Police, relating to her classification grievance.
[2]
After Ms. Gilbert commenced her application for judicial review, her
employer purported to rescind the Director’s decision, indicating that it would
convene a new Classification Grievance Committee to re-hear the grievance. As
a consequence, the respondent submits that the Court should decline to hear the
application for judicial review, as it is now moot.
[3]
Ms. Gilbert submits that her employer had no authority to rescind theDirector’s
decision, and that, as a result the matter is not moot. Moreover, she submits
that the Director erred in law in his decision by failing to have regard to the
applicable Classification Standard.
[4]
For the reasons that follow, I find that the application is not moot, as
the employer did not have the power to unilaterally rescind the Director’s
decision. Moreover, I am satisfied that the Director did err in failing to
have regard to the Classification Standard. As a consequence, the application
for judicial review will be allowed.
Background
[5]
Ms. Gilbert is a strategic planning analyst employed by the RCMP. On
June 10, 2004, she filed a classification grievance requesting that her
position be classified at the AS-05 level instead of the AS-04 level.
[6]
Once a classification grievance is received by the RCMP, the grievance
policies and procedures established by the Treasury Board, under the authority
of the Financial Administration Act, mandate that a Classification
Grievance Committee be convened to hear the grievance.
[7]
The Committee is then required to assess the position in issue against various
factors identified in the applicable Classification Standard. In this case, it
is the Administrative Services Classification Standard that is applicable to
Ms. Gilbert’s position.
[8]
The Administrative Services Standard identifies four factors to be used
in evaluating positions: knowledge (which is broken down into three
sub-categories of education, experience and continuing study), decision making,
responsibility for contacts and supervision.
[9]
The “Notes to Raters” guidelines provided to members of Classification
Grievance Committees assign specific point totals to be awarded to each factor,
depending on a number of conditions. The classification level for the position
under review is then determined according to the total number of points awarded
in accordance with this system.
[10]
Ms. Gilbert’s submissions before the Committee related solely to the
rating that her position had received for the education element. She argued
that the “A” rating that had been assigned to her position for the educational
factor was inappropriate, as it indicated that the position required no
specialized training.
[11]
Ms. Gilbert submitted that her position required that analysts provide
expert advice. In order to be able to provide this advice, she argued that analysts
required knowledge “beyond what one would be able to acquire through on-the-job
experience … which incorporates the basic principles and theories of a number
of different areas such as Sociology, Economics, Political Science,
Criminology, Statistics and Business Management”.
[12]
Ms. Gilbert and her representative also provided the Committee with
information as to the classification of what she said were comparable
positions, which had received a “C” rating for the educational factor.
[13]
The Committee reviewed Ms. Gilbert’s submissions, as well as those
provided by her union. The Committee also considered the submissions that had
been made on behalf of the employer. The Committee then found that the level
of expertise required by Ms. Gilbert’s position was less than that for a
position requiring a professional level of expertise, and was not comparable to
the positions relied upon by Ms. Gilbert.
[14]
In its analysis, the Committee referred to the guidance offered by the “Notes
to Raters”, which form part of the Classification Standard. The Notes provide
that a “C” rating should be assigned to a position where the duties of the
position:
1.
Require university graduation in a specialized field; or
2.
Require understanding and appreciation of the principles and concepts of
two or more specialized fields for which the knowledge is normally acquired
through university training and which are directly associated with the duties
performed; or
3.
Require systematic study and analysis of complicated general problems
and their solution by the application of specialized knowledge acquired through
extensive post-secondary school study or training rather than through
experience.
[15]
The Notes go on to provide that “In positions with duties which meet
conditions 2 and 3, the incumbents will not necessarily be university
graduates”.
[16]
Insofar as Ms. Gilbert’s position was concerned, the Committee found
that the position:
[W]as
comparable to conditions 2 and 3, requiring an understanding and appreciation
of principles and concepts of two or more specialized fields (Business
Management, Statistics and Economics to name three) and the systematic study
and analysis of complicated general problems (such as identifying issues and
trends through environmental scans) and their solution, but did not necessarily
require university graduation. On that basis the committee was unable to
support a C level rating for the [subject position].
[17]
The Committee then rated the knowledge requirement of the position at
the second level on the scale, that is at the “B” level.
[18]
Ms. Gilbert’s union representative then wrote to the Director of the
Organization and Classification Directorate, on September 6, 2006, requesting
that he review the Committee’s decision as the nominee of the Deputy Head and
the final level grievance authority.
[19]
It was argued by Ms. Gilbert’s representative that the Committee had
erred in its assessment, as the Notes to Raters clearly specified that a “C”
level was to be assigned to a position where the duties of the position met any
of the three conditions listed. As the Committee had found that Ms. Gilbert’s
position met two of the conditions, it followed that the position should have
been assigned a “C” level rating.
[20]
On September 15, 2006, the Director advised that he was confirming the
decision of the Committee. He stated that although one could construe the
Committee’s decision as confirming that Ms. Gilbert’s position met two of the
requirements for a “C” rating, after discussing the matter with the Committee,
he was satisfied that the Committee had concluded a “B” rating was the
appropriate assessment for the position.
[21]
The Director further stated that the Committee’s conclusion that her
position “was comparable to conditions 2 and 3” did not mean that the position
conformed in every respect to the conditions for a “C” level rating. According
to the Director, two matters may be “comparable”, but it did not follow that
they are necessarily “equivalent”.
[22]
It is this decision which underlies Ms. Gilbert’s application for
judicial review.
Post-Decision Developments
[23]
After Ms. Gilbert had commenced her application for judicial review, Guy
Bonneville, the Manager of Classification Grievances for the Public Service
Human Resources Agency of Canada, instructed counsel to advise Ms. Gilbert that
the Director’s decision would be set aside and a new hearing ordered.
[24]
It is not clear from either counsel’s letter or the affidavit that Mr.
Bonneville swore in the context of this application who it was that had actually
made the decision to rescind the Director’s decision. No affidavit was
provided by the Director.
[25]
A new hearing for Ms. Gilbert’s grievance was scheduled for April of
2007, but was postponed at the request of Ms. Gilbert’s union representative,
pending the result of this application.
Is the Application for Judicial
Review Moot?
[26]
The respondent argues that the Court should decline to entertain Ms.
Gilbert’s application for judicial review on the basis that it is now moot.
Given that the respondent has already agreed to rescind the decision underlying
this application, the respondent says that there is no longer a live
controversy between the parties.
[27]
Ms. Gilbert argues that the employer is simply trying to deprive her of
the benefit of the Classification Grievance Committee’s finding that her position
met the requirements for an AS-05 classification. She submits that the matter
is not moot, as there was no authority for the respondent to purportedly
rescind the Director’s decision. As a consequence, she says that the decision
stands, and is thus susceptible to judicial review.
[28]
I agree with Ms. Gilbert that the matter is not moot as the respondent
did not have the authority to unilaterally rescind the decision of the Director.
[29]
The Director’s decision was the final level decision available for this
type of grievance, which was governed by the provisions of the since-repealed Public
Service Staff Relations Act, R.S. 1985 c. P-35.
[30]
Subsection 96(3) of the Act provides that:
|
96. (3) Where a grievance has been presented up to
an including the final level in the grievance process … 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. [emphasis added]
|
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.
|
[31]
Decisions made by Classification Grievance Committees and final level
authorities are decisions made by “federal boards, commissions or other
tribunals” within the meaning of section 2 of the Federal Courts Act,
R.S., 1985, c. F-7, in the exercise of their statutory authority.
[32]
The respondent argues even though subsection 96(3) of the Public
Service Staff Relations Act makes it clear that decisions made at the final
level are final and binding, this language should not be interpreted to
preclude the employer from acting promptly and informally to rectify an obvious
error.
[33]
While this argument is attractive at first blush, I would note that what
is in issue here is not the correction of a minor slip in the decision, but its
wholesale revocation.
[34]
Moreover, the argument has to be considered in light of the respondent’s
concession that if the employer indeed had the authority to rescind the
Director’s decision, nothing would prevent the employer from being able to rescind
any final level decision with which it did not agree.
[35]
If this were so it would, in my view, fundamentally undermine the
integrity of the grievance process. It would also mean that final level
decisions were final and binding on grievors but not on the employer – a
patently untenable result, and one at odds with the clear intent of the
legislation.
[36]
It is also noteworthy that while some federal employment legislation
specifically confers the right on decision-makers to rescind or amend
decisions, no such power is conferred on the employer in this case by the Public
Service Staff Relations Act: see for example, subsection 15(3) of the Public
Service Employment Act, 2003, c. 22, ss. 12, 13 and subsection 32(3)
of the Royal Canadian Mounted Police Act, R.S., 1985, c. R-10.
[37]
The respondent further submits that a decision to rescind a final level
grievance decision is not a “further action” under the Public Service Staff
Relations Act, but is rather ‘a decision made within the framework of
internal processes relating to the classification of positions’.
[38]
At the time in issue in this case, classification decisions were subject
to the grievance provisions of the Public Service Staff Relations Act.
Part IV of the Act conferred the right on most non-managerial public servants
to grieve matters related to their conditions of employment, including
classification decisions. An action purporting to rescind a final level
grievance decision made under the Act would clearly be a “further action” taken
in respect to the grievance, and would thus be governed by subsection 96(3).
To interpret the section otherwise would clearly be contrary to Parliament’s
intent that final level grievance decisions be binding on both parties.
[39]
In support of its contention that the matter is moot, the respondent
also relies on two decisions of this Court: Utovac v. Canada
(Treasury Board), 2004 FC 1615 and Kowallsky v. Canada
(Attorney General), 2006 FC 1458.
[40]
With respect to the Utovac decision, the Court’s reasons are very
brief, and it does not appear that any of the arguments now being advanced by
Ms. Gilbert were put before the Court in that case. As a consequence, I am of
the view that the decision is of limited assistance here.
[41]
Insofar as the Kowallsky decision is concerned, the case is
distinguishable on its facts, as it did not involve an attempt by the employer
to rescind a final level grievance decision, nor was any consideration given to
the effect that subsection 96(3) of the PSSRA would have on such an
attempt.
[42]
In the absence of authority on the part of the respondent to
unilaterally rescind the Director’s decision, the decision remains in effect.
As a consequence, the application for judicial review is not moot, and will be
considered by the Court.
[43]
Before turning to consider the merits of Ms. Gilbert’s application, I
would note that the respondent made no submissions in its memorandum of fact
and law with respect to the merits of the decision, nor was there any attempt
made to defend the decision on its merits at the hearing of Ms. Gilbert’s
application.
Did the Director Commit a reviewable Error in Failing to
have Regard to the Classification Standard and the Notes to Raters?
[44]
As I am satisfied that the decision under review cannot withstand
scrutiny under any standard of review, it is unnecessary to address the
standard to be applied to the decision.
[45]
A review of the findings of the Classification Grievance Committee
confirms that the Committee found that the duties of Ms. Gilbert’s position
“were comparable” to two of the three conditions identified in the Notes to
Raters as necessary for level “C” to be assigned. The Committee did not,
however, assign a level “C”. The reason given by the Committee for assigning
the position a level “C” was that the position did not necessarily require
university graduation.
[46]
This is clearly an error, as the three criteria listed in the
Classification Standard are disjunctive: that is, Committees are directed to
assign a level “C” to positions where the duties of the position require
specialized training of the type identified in any one of the three conditions
identified in the Notes.
[47]
Moreover, the Notes to Raters further specify that “in positions with
duties which meet conditions 2 and 3, the incumbents will not necessarily be
university graduates”.
[48]
In confirming the Committee’s decision, the Director stated that after
discussing the matter with the Committee, he was satisfied that the Committee had
concluded a “B” rating was the appropriate assessment for the position. That
may well be, but it begs the question as to whether it was open to the
Committee to assign a “B” level rating in the face of its finding that the
position was comparable to two of the three conditions set out in the
Classification Standard.
[49]
The Director’s second reason for confirming the Committee’s decision was
that the Committee’s statement that the position “was comparable to conditions
2 and 3” did not mean that the position conformed in every respect to the
conditions for a “C” level rating. According to the Director, two matters may
be “comparable”, but it does not follow that they are necessarily “equivalent”.
[50]
With respect, the Director was attempting to re-write the Committee’s
decision. A review of the Committee’s decision discloses that the basis for the
Committee’s decision was not that the position did not meet conditions 2 and 3.
A fair reading of the decision indicates that the Committee accepted that this
was the case. Rather the reason given for refusing to assign the position with
a “C” level for the knowledge component was that the position “did not
necessarily require university graduation”. Indeed, the Committee specifically
noted that it was “[o]n that basis [that] the committee was unable to
support a C level rating for the [subject position]” [emphasis added].
[51]
As a consequence, given the finding of the Classification Grievance
Committee that Ms. Gilbert’s position met the requirements of conditions 2 and
3, the decision affirming the decision of the Classification Grievance
Committee to award the position a “B” level for the knowledge factor was
patently unreasonable. The decision is therefore set aside, with costs.
Remedy
[52]
I agree with Ms. Gilbert that as the Classification Grievance Committee
has already assessed her position and made its factual findings in that regard,
nothing is to be gained by remitting the grievance for a complete reassessment.
[53]
Paragraph 18.1(3) of the Federal Courts Act empowers the Court to
refer matters back for determination in accordance with such directions as it
considers appropriate.
[54]
In Turanskaya v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 254, the Federal Court of Appeal discussed
this power, holding that:
6 The "directions"
which the Trial Division is authorized to give under paragraph 18.1(3)(b) will
vary with the circumstances of a particular case. If, for example, issues of
fact remain to be resolved it would be appropriate for the Trial Division to
refer a matter back for a new hearing before the same or differently
constituted panel depending on the circumstances. That, however, is not the
case here. The only issue to be resolved by the Trial Division was whether the
Refugee Division had erred in law in determining the respondent not to be a
Convention refugee because of her former habitual residence in the Ukraine…
The appellant raised no issue before her by way of judicial review with respect
to findings of fact. It follows, therefore, that no issue of that kind remains
unresolved. We are satisfied, in the circumstances, that [the applications
judge] exercised her discretion within the limits of paragraph 18.1(3)(b) by
leaving the final determination to the Refugee Division on the basis that, with
the error of law corrected, it declare the respondent to be a Convention
refugee.
[55]
There is no dispute between the parties with respect to the Committee’s
assessment in relation to the other factors identified in the Classification
Standard. Nor is there any question that if the position is assigned a “C”
level for the education factor, that the points assigned to the position will
require the reclassification of the position to the AS-05 level.
[56]
Indeed, the only issue left to be determined in this case is whether Ms.
Gilbert’s position should be assigned a “C” level rating, based upon the
Committee’s determination that the duties of the position satisfied two of the
three conditions identified in the Notes to Raters as necessary for level “C”
to be assigned.
[57]
The answer to this question is dictated by the wording of the Notes to
Raters, which mandate that a “C” level is to be assigned where the duties of
the position satisfy one of the three conditions identified in the standard.
[58]
As a consequence, the Court orders that the case should be remitted to
the Director of the Organization and Classification Directorate with the
direction that Ms. Gilbert’s position be assigned a “C” level for the Education
element of the Classification Standard.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1.
This application for judicial review is allowed, with costs.
2.
The case is remitted to the Director of the Organization and
Classification Directorate with the direction that Ms. Gilbert’s position be
assigned a “C” level for the Education factor identified in the Classification
Standard.
“Anne
Mactavish”
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