Date: 20080213
Docket: T-208-07
Citation: 2008 FC 186
Ottawa,
Ontario, the 13th day of February 2008
Present:
the Honourable Mr. Justice de Montigny
BETWEEN:
COLOMBE
BEAUCHEMIN
Applicant
and
CANADIAN
FOOD INSPECTION AGENCY
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant has been a pay and benefits manager in the human resources operations
division at the Quebec operations centre of the
Canadian Food Inspection Agency (CFIA) since March 1998. On November 27, 2006, Natalie Harrington, acting vice-president of
Human Resources, handed down a decision dismissing the applicant’s
classification grievance.
Although the applicant is
contesting, by this application for judicial review, the grievance committee’s
“decision”, it was essentially only a recommendation to the person delegated by
the deputy head to resolve classification grievances. Thus it is Ms.
Harrington’s decision to confirm the committee’s recommendation that is,
technically, the subject of this judicial review. For the following reasons, I
have concluded that the decision must be upheld.
I. Facts
[2]
The
applicant has been in the federal government’s employ since 1973 and has worked
in several departments in the pay and benefits area. She has held a managerial position
at the
AS-04 level at the CFIA since March 1998.
[3]
In 2002, the
applicant asked the CFIA to update her job description. On December 6, 2004, the CFIA presented her with a revised job description. The
applicant then submitted this job description to an interdepartmental classification
committee for assessment. During this process, the applicant’s manager
indicated, inter alia, that the incumbent must advise senior management
of the operations centre and human resources management regarding the compensation
program, as mentioned in her job description.
[4]
The classification
committee concluded, in September 2005, that the applicant’s position was one of
group and level AS-04. This
decision was communicated to the applicant on October 4, 2005.
[5]
On October
31, 2005, the applicant and two of her co-workers (one in Ontario and the other in Alberta) filed a classification
grievance requesting an AS-05 classification of their position. A hearing was
held on October 6, 2006 during which the applicant’s representative put forward
the reasons for which a reclassification was requested and submitted numerous
documents supporting her claims. In particular, he filed job descriptions for
25 pay manager positions in the public service of Canada as well as the job
descriptions for two positions at the CFIA, that of [translation] “training and organizational
development coordinator” and that of [translation] “facilities manager”. Then,
on October 26, the committee met with two management representatives, in the absence
of the applicant and her representative, in accordance with the [translation]
Classification Grievance Procedure in effect at the CFIA. Based on all of
the information obtained, the committee recommended, on November 27, 2006 that the applicant’s grievance
be dismissed, a recommendation which was confirmed by the deputy head’s delegated
representative.
II. Impugned decision
[6]
To assess
the positions of the applicant and of her co-workers, the committee had to
follow the Classification Standard – Administrative Services (AS). It provides
that four factors are to be used in determining the relative values of jobs:
knowledge (education, experience and continuing study), decision-making (scope
and impact), responsibility for contacts (nature of contacts and persons
contacted) and supervision (number and level of employees supervised). A
minimum and a maximum value are attributed to each of these factors depending
on their relative importance. This standard also includes descriptions of
sixteen bench-mark positions which serve as examples for the various degrees of
each of the factors to be considered.
[7]
The Committee,
consisting of three members, first met on October 6 to hear the applicant’s
submissions (through her counsel, Mr. Bergeron) and those of her two co-workers.
Then the Committee met again
on October 26 to ask questions of two management representatives.
[8]
It appears
from the summaries of these meetings in the Committee’s report that Mr. Bergeron
asserted that the assessment of the “knowledge” and “decision-making” factors
should be reviewed, and emphasized the extent of the responsibilities assigned
to the position in question as well as the requirements attached thereto. While
acknowledging the operations manager’s responsibility to provide sector heads
with operational and strategic advice on compensation, he stressed the fact
that it often falls to the person holding the position in question to perform this
function since the operations manager is a generalist in the area of human
resources.
[9]
As for the
management representatives, they were invited to meet with the Committee to
provide explanations with respect to the complainants’ assertions with regard
to the role of compensation policy officers and more precisely with regard to
their responsibilities with respect to compensation and the provision of advice
and guidance to the operations centre's managers. They acknowledged that the
person holding Ms. Beauchemin’s position might have to provide specialized
advice to senior management or accompany the senior manager to meetings to
discuss compensation plans and issues, [translation]
“even though that
is not a regular requirement”.
[10]
After having reviewed
and weighed all the documentation and information before it, the Committee
agreed that the three positions scored a total of 463 or 483 points. The 20-point
spread can be explained by the number of employees supervised; although the
Committee does not specify, it appears that the applicant’s position was
assessed at 483 points. Since the standard provides that a total of between 401
and 500 points is equivalent to an AS-04 position, the Committee recommended
that the positions which were the subject of the grievance not be reclassified.
[11]
The
Committee acknowledged from the start that there was a lack of uniformity in
the evaluations of regional compensation managers within the public service, hence
the importance of applying the Classification Standard – Adminstrative Services
correctly.
[12]
With regard
to the “knowledge” factor, the members of the Committee noted that there was no
dominant trend as regards the “education” element in the public service and
decided to raise the mark slightly to take into account the fact that greater experience
and more advanced knowledge are required because the organization is an Agency.
As for the “impact of decisions” element, the Committee reviewed the
responsibilities contained in the job description of the position in question
and their repercussions to determine their relevance in relation to the bench-mark
positions and their relative value in relation to regional compensation manager
positions in the public service as a whole. It was first noted that it is normal for regional pay and
benefits managers to take part in the development of policies, guidelines, directives
and bulletins since they are part of an integrated team. It was also concluded
that the specialized advice they might provide to the senior management of the
operations centre was not a permanent requirement. The Committee also took into
account the client base served by the positions in question, as well as the
training and support provided.
[13]
Finally, the members
of the Committee indicated that they had reviewed the relative value of the
regional compensation manager positions by looking at the job descriptions
supplied by Mr. Bergeron and the reports from the Position and Classification
Information System. While it was agreed that there were a few similarities
between the position in question and certain positions classified AS-05,
differences were also pointed out which justified a different mark: the context
of the work, the obligation to fulfill certain responsibilities at the
organizational level, the size of the client base, and the centralization or
decentralization of the compensation function. Conversely, many positions
classified AS-04 are very similar to the positions of CFIA regional pay and
benefits managers.
[14]
As for the latest
report from the Position and Classification Information System, a review
thereof indicates that similar positions, serving a similar client base and
having similar responsibilities, are for the most part classified AS-04. Positions
at the AS-05 level are in larger departments. From that, the Committee
concluded that the relative value of similar regional compensation manager
positions in departments of similar size justifies an assessment at the AS-04
level.
[15]
As for the internal
relative value, the applicant wanted the Committee to review the Agency’s training
and development coordinator position. However, it turned out that the job
description for that position was not up to date and that the reason had never
been approved. As for the other position within the CFIA that the applicant had
submitted for comparison purposes, namely that of facilities manager, the Committee
said nothing about it.
[16]
On the basis of all
the information from both parties, the Committee therefore concluded that given
the complexity of the tasks of the position in question and the impact of its
advice, decisions and recommendations, a grade of 2 (moderate) for the element
“impact” was justified. The members of the Committee were of the view that a
grade of 3 (extensive) was not justifiable for this element, considering the
relative value of this position compared with the bench-mark positions.
III. Issues
[17]
The applicant
submitted several arguments in support of her application for judicial review.
After thoroughly reviewing the file and hearing the parties, it seems to me
that they can be grouped under the following three headings:
(A) Did the Committee fail
to consider all the relevant facts? More specifically, did the Committee err in
not taking into account the only two comparable positions within the CFIA,
without providing an explanation with regard to one of them and giving as a
pretext for the other that its job description was not up to date?
(B) Did the Committee fail
to follow the [translation] Classification Grievance Resolution Procedure, by meeting with two management
representatives rather than one and in preferring their opinions to the job
description of the position in question?
(C) Did the Committee breach
the principles of procedural fairness by consulting the Position and
Classification Information System without informing the applicant and without
allowing her to submit reply evidence?
IV. Analysis
[18]
There is
no difference of opinion between the parties as to the applicable standard of
review. To the extent that the issues raised in the present dispute consist in
determining if the Committee considered all of the evidence adduced and whether
its assessment of this evidence was incorrect, the applicable standard of
review is undeniably that of patent unreasonableness. Indeed, that is what this
Court has concluded on numerous occasions in recent years: see, for example, Adamidis
v. Canada (Treasury Board), 2006 FC 243; Laplante v. Canada (Canadian
Food Inspection Agency), 2004 FC 1345; Trépanier v. Canada (Attorney
General), 2004 FC 1326; Utovac v. Canada (Treasury Board),
2006 FC 643; Lapointe et al. v. Canada (Treasury Board), 2004 FC
244.
[19]
The Public
Service Labour Relations Act (S.C. 2003, c. 22) contains, at section 214, a
privative clause making decisions at the final grievance stage “final and
binding”. While this
privative clause is not absolute, it nonetheless is evidence of the will of Parliament
to limit recourse to common law courts.
[20]
Furthermore, the Classification
Grievance Committee performs highly specialized functions and possesses
expertise in matters of classification, an area which does not fall under the particular
expertise of this Court. As emphasized by Phelan J. in Adamidis, supra, “It required expertise in
classification, and a thorough knowledge of the policies, procedures and
organization of government employees and their functions” to apply the
classification system. That calls for a high degree of deference.
[21]
Thirdly,
the purpose of classification is to achieve a form of parity among the job
assessments of a given employer. It is a delicate balancing exercise that
consists in reconciling various interests rather than establishing the rights
of the parties. It can thus
be said that the aim of the Act is polycentric, “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.” (Trépanier v. Canada (Attorney General), supra, paragraph 23).
[22]
Finally,
the type of issue that comes before the Committee, namely the comparison of duties
performed, of the group and the level of each position, and the numerical value
assigned to each factor, is eminently factual. The Federal Courts Act (R.S.C.
1985, c. F-7) stipulates at paragraph 18.1(4)(d) that the Court shall only
intervene on a question of fact if the impugned decision [of the federal board,
commission or other tribunal] is “based on an erroneous finding of fact that
it made in a perverse or capricious manner or without regard for the material
before it”.
[23]
In light
of these four contextual factors, I have no choice but to apply the patently
unreasonable standard. This standard calls for a very high degree of deference
and authorizes the Court to intervene only in cases where a decision is “clearly
irrational” or “contrary to reason”: Canada (Attorney General) v. Public
Service Alliance of Canada [1993] 1 S.C.R. 941, at p. 963; Canada (Director of Investigation
and Research) v. Southam Inc.,
[1997] 1 S.C.R. 748, at paragraph 57.
[24]
This
analysis does not apply however to the applicant’s arguments based on an
apparent violation of the principles of procedural fairness. It is up to the
Court to define the extent of the obligation to act fairly in the circumstances
of each case, and, in this regard, the administrative decision-maker does not
have the right to err.
[25]
That being
said, we must never lose sight of the fact that the obligation to act fairly
will be more or less extensive depending on the nature of the interests
affected by the decision and the nature of the procedure in question. In the
context of a classification grievance resolution, this Court and subsequently the
Court of Appeal found in Chong v. Canada (Treasury Board), [1995] F.C.J. No. 693 (F.C.),
[1999] F.C.J. No. 176 (F.C.A.) that the degree of fairness required lies on the
side of a “lesser requirement” rather than that of a stricter standard. There will however always be inescapable
obligations, including the following:
.
. . when the committee decides to review an aspect of the classification assessment,
which the
employee did not think was in dispute, and decides to elicit and rely on evidence with
respect thereto about which the employee had no notice or information,
fairness requires that that information be disclosed to the employee and he be
given an opportunity to comment thereon . . .
Hale v. Canada (Treasury Board), [1996] 3 F.C. 3, at p. 16, repeated
with approval by the Federal Court of Appeal in Chong, supra, at
paragraph 13.
(A)
Did the Committee fail to consider all the relevant facts?
[26]
As mentioned
previously, the applicant claimed that the Committee should have taken into
account the two managerial positions within the CFIA that her representative had
submitted to it for purposes of assessing the “impact of decisions” aspect of
her position. She points out that this aspect of the assessment is graded C2
and given 209 points for each of these two positions, while the impact of decisions
made in the context of her duties is graded B2 and given only 163 points.
[27]
The applicant is
entirely correct in claiming that internal relativity is just as important as
comparison with the bench-mark positions in the classification standards. In Chong, supra, McKeown J. wrote
in this connection (at paragraph 45):
In
my view the Classification Standard is not limited to comparing the grievors’
positions with bench-mark positions. The Classification Standard states
that the “ultimate objective of job evaluation is to determine the relative
value of positions in each occupational group. The relation of the
position being rated to positions above and below it in the organization is
also studied.” The grievors submit that the closest job description
to the B.C./Yukon one is the one for the Ontario job description and, accordingly,
although it was not a bench-mark position, the committee was bound to consider
why a different classification should be assigned to the B.C./Yukon
position.
[28]
It must be said that
in Chong, the descriptions of the two positions that had not been
considered were nearly identical to that of the position that was the subject
of the grievance. In fact, the position whose classification was being
contested had served as a model for the description of the position
subsequently classified at a higher level. The same cannot be said in this
case. The two internal positions submitted by the applicant’s representative for
the Committee’s review have nothing in common with human resources, and even
less with compensation. Even though the classification exercise allows for
comparison with jobs which a priori have little in common, it remains
true that compensation managers’ positions within other departments and
agencies of the public service were more relevant for the purpose of assessing
the applicant’s position fairly.
[29]
As regards more
particularly the position of facilities manager, it is true that the Committee
did not explicitly discuss it in its report. However, the Committee did
indicate that it had reviewed all of the documentation and information that had
been submitted to it. What is more, the respondent is entirely correct in
claiming that there
is no legal obligation to set out every piece of evidence, every question
raised by the parties or every conclusion that led to the decision: Jarvis v. Canada (Treasury
Board), 2004 FC 300, at paragraph 5.
[30]
As for the
position of coordinator of training and organizational development, the
Committee decided not to take it into account for the reason that its job
description was not up to date. In my view, that was a consideration that the
Committee was totally justified in weighing in assessing the relative value of
the positions within the Agency.
[31]
It is true that the
Committee seems to have obtained this information from Candida Lourenço, who
had acted as an observer at the time of the first classification decision in September
2005. However I do not see how this could have prejudiced the applicant. For
one thing, Ms. Lourenço was not a member of the interdepartmental
classification committee that made an initial assessment of the position in
September 2005, and no attempt was even made to show that she was in a position
of conflict of interest. Thus, there was no breach of the Agency’s Classification
Grievance Procedure, of which item VII (A) (5) provides that [translation]
“no member of the committee may have participated in the classification
decision which is the subject of the grievance, supervise directly or have
supervised the position in question, or be in a position of potential conflict
of interest”.
[32]
Moreover, during
cross-examination, Gisèle Duford, chair of the Committee, revealed that Ms.
Lourenço merely passed on the relevant documentation to the Committee and
confirmed that the position was to be reviewed and reevaluated. She did not
participate in the Committee’s deliberations, nor did she discuss the
assessment of the position in question. The information transmitted was purely
factual and simply corroborated what, in any event, could be seen in the file
itself. Besides, it was not explained to me how the applicant might have been
prejudiced by not having been able to make representations in this regard. In
any case, this position was far removed from the duties performed by the
applicant and could only have a very limited impact on its classification; in
this regard, it is interesting to note that Ms. Beauchemin’s representative
himself alluded very little to it, at least in his written representations to
the Committee.
[33]
For all these
reasons, I am of the view that the Committee did not commit a patently
unreasonable error in assessing the applicant’s position. Its decision is
comprehensive and is based on all of the documentation that was before it,
including the job descriptions submitted by the applicant’s counsel. The applicant
stressed two positions within the Agency whose similarities with the duties she
performs are tenuous to say the least, and paid little heed to the thorough
analysis that the Committee made of the other 25 bench-mark positions that she
also submitted through her representative at her grievance hearing.
[34]
This Court must
refrain from intervening where the Committee’s decision is based on the
evidence adduced, in spite of the fact that it might have arrived at a
different conclusion. The members of the Committee possess great expertise in
the area of classification, and a high degree of deference must be shown in
reviewing their decisions. While the applicant’s disappointment is
understandable, that cannot constitute sufficient reason to set aside a structured
and reasoned decision made at the conclusion of a hearing during which her
representative was able to put forth all the reasons and file all the evidence
in support of her grievance.
(B) Did the Committee fail to follow
the Classification Grievance Resolution Procedure?
[35]
The applicant also
argued that the Committee had contravened the Agency’s Classification Grievance
Resolution Procedure by meeting with two management representatives rather
than only one and in preferring their opinions to her job description. These
claims seem to me to be unfounded for the following reasons.
[36]
During the
grievance hearing, the applicant had invited the Committee to meet with Claudia
Pasteris-Sayegh, her supervisor, and Yvon Bertrand, the Agency’s executive director
for the Quebec region, for the purpose of
illustrating the tasks and duties that the applicant must perform as well as
their frequency of execution. But the Committee preferred to meet with Lyne
Caissie, collective agreements and compensation administrator, and Monica
Surrett, compensation policy officer, both stationed in Ottawa. In her affidavit, Gisèle Duford explained
this choice by indicating that the Commitee was seeking clarification of
certain assertions made by the applicant’s representative, in particular on the
role of compensation policy officers and more precisely on their
responsibilities concerning compensation. More specifically, the Committee
wished to obtain information on the administration of the compensation program
at the Agency level as opposed to its administration at the regional level.
[37]
It is
clear, upon reading the Classification Grievance Procedure, that the
choice of management representatives is the Committee’s. In this case, it was
certainly not unreasonable to want to obtain information from the person
responsible for compensation at the national level, so as to understand fully
the relations that might exist between regional compensation officers and senior
management. In any case, the initial classification committee had already consulted
the applicant’s immediate supervisor. In its report, the Grievance Committee
quotes a passage from this initial committee’s report where it is said: [translation]
“the committee reviewed the JD (job description) of the immediate supervisor
and obtained confirmation that the Manager, Human Resources Operations, is
responsible for transmitting knowledge and providing advice regarding human
resources to sector management, in particular with regard to strategic and
operational issues” (Applicant’s file, pp. 88-89).
[38]
I do not see anything
in the wording of the Procedure which could limit the number of
management representatives who can be consulted by the Committee. Item VII (C) provides as follows :
[translation]
1.
A management representative who is familiar with the nature of the work of the grieved
position should be available in order to answer committee members’ questions.
2.
The management representative does not express any opinion on the
classification decision which led to the grievance, does not attempt to influence
the members of the committee, does not participate in the committee’s
deliberations and is not present when observations are made by the complainant
and/or his or her representative.
[39]
It seems to me that
this provision is to be taken in its generic sense and simply aims to provide
that management must be available to answer the Committee’s questions. In fact,
it seems to me that the applicant is in a very poor position to find fault with
the Committee for having invited two management representatives to answer its questions,
when she herself had asked the Committee to meet with her immediate supervisor
and the Agency’s executive director for Quebec. In any case, the applicant did not
elaborate on her reasons for believing that she was prejudiced by the fact that
two persons were present rather than only one.
[40]
As for the
argument that the testimony of these management representatives was given preference
over the job description, without the applicant being given the opportunity to
be heard, I would make the following comments. It is totally exact to claim, as
does the applicant’s representative, that a classification grievance cannot
pertain to the content of a job description or the effective date of the classification
decision. Those aspects are resolved by applying the resolution procedure for staff
relations grievances provided for in collective agreements (Classification Grievance
Procedure, Item I(B)(2)). It
is also strictly true that the job description for the applicant’s position
includes supplying strategic advice. Indeed, the last paragraph of page 3 of the
job description reads:
[translation]
Give
strategic advice to senior management of the operations centre and to human
resources management concerning the compensation program and supply information
on the implication of new or amended acts or regulations to management in Ottawa. Draw up recommendations for the implementation of communication
strategies. This information allows them to foresee repercussions of changes on
regional resources and to propose solutions.
[41]
Contrary to what the
applicant asserts, however, the Committee did not refuse to accept the duties contained
in the job description and did not modify the content of her tasks by basing
itself solely on what the management representatives said. Those
representatives acknowledge, as indeed does the Committee, that the applicant
sometimes provides stategic advice to senior management. It is on the frequency
and intensity of this task that there is disagreement. Relying on the job
description of the applicant’s immediate supervisor, as well as on the
information provided by the management representatives, the Committee concluded
that the occasional nature of this task did not justify raising the mark for
the “impact” element. This is a conclusion that the Committee could draw without
modifying or misrepresenting the job description of the position in question. Moreover,
that is only one of the factors that the Committee took into account in its
assessment of the “impact” element, as the original English version of its
report attests.
[42]
I am conscious of the
fact that the obligation to act fairly applies to the classification grievance resolution
process. While this obligation lies on the “lesser requirement side”
considering the nature of this procedure, the person affected must at the very
least have the right to put forth his or her point of view on any issue that
might have an impact on the decision. As Evans J. wrote for the Federal Court
of Appeal in Bulat v. Canada (Treasury Board), [2000] F.C.J. No. 148 :
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.
[43]
In this case, the
applicant had every opportunity to make her representations. Not only was the
Committee aware that the applicant’s immediate supervisor had confirmed to the
initial interdepartmental committee that she provided advice to senior management
on strategic and operational issues, but her representative returned to this
same point during the October 26, 2006 hearing. The applicant cannot therefore
complain that she was caught by surprise or that she was not able to give her
version of the facts. Her position was known by the Committee, and it simply chose
not to accept it. This could not constitute a breach of the principles of
procedural fairness.
(C) Did the Committee breach the
principles of procedural fairness by consulting the PCIS without advising the
applicant?
[44]
The applicant argued
that the Committee contravened the Procedure by using, without advising
her thereof, information from the Position and Classification Information
System. To support her claim, the applicant referred to Item VII (D)(2), which reads as follows:
[translation]
Management or the complainant may
present new information to the committee at any time between the day of the
hearing and the issuance of the decision. If
the committee deems that new information is important, this information shall
be conveyed to the other party, which will then have ten days to submit a
reply. The committee shall review both the information and the other party’s
reply before finalizing its report.
[45]
It does
not seem to me that this argument should be accepted for the following reasons.
Even though the evidence is contradictory in this respect, it seems that the
PCIS is a reference tool available within the public service. But even
supposing that the applicant did not have access to it, the explanation
provided by Ms. Duford for not having submitted it to her seems to me to be
reasonable. In her cross-examination on affidavit, she mentioned that the PCIS report is a simple reference tool that
gives a list of all positions at a given level. It was not, in this case, new
information presented by management; moreover, this report only confirmed that in
terms of relative value, several regional compensation manager positions are
classified AS-04. Consequently, even if Item VII (D)(2) of the Policy
was applicable, the Committee could consider that the information was not sufficiently
important for it to be necessary to inform the applicant thereof.
[46]
For all these
reasons, I consider that the application for judicial review must be dismissed.
Both parties waived costs at the hearing, therefore there will be no costs.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be dismissed without costs.
“Yves
de Montigny”
Certified
true translation
Brian
McCordick, Translator
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