Date:
20130208
Docket:
T-1793-11
Citation:
2013 FC 139
Ottawa, Ontario,
February 8, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
|
|
MICHAEL BACKX
|
|
|
|
Applicant
|
|
and
|
|
|
CANADIAN FOOD INSPECTION AGENCY
AND NANCY GRIFFITH
|
|
|
|
Respondents
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 18.1 of the Federal
Courts Act, RSC
1985, c F-7, of a final level grievance decision by
Stephen Baker, Vice-President Operations of the respondent Canadian Food
Inspection Agency [CFIA or employer], granting the applicant’s grievance in
part. In his grievance, the applicant, Dr. Michael Backx, argued that the list
of qualified candidates generated with respect to a competition to staff a
VM-02 Veterinarian-in-Charge position in London, Ontario, relating to the Meat
Hygiene division, should not have been used to staff a promotional VM-02
position related to the Animal Health division. Although the grievance was
granted, the CFIA decided not to grant the applicant’s requested corrective
action; hence the present application for judicial review.
Facts
[2]
The
applicant is a veterinarian employed with the Operations Branch of the CFIA at
the London, Ontario District Office. The Operations Branch typically comprises
a Meat Hygiene division and an Animal Health division,
although these are not official employment categories in the Veterinary
Medicine [VM] occupational
group. The applicant holds a VM-01 position in the latter division since 1981.
[3]
The facts with respect to the staffing
process are not in dispute. In August 2006, the CFIA held a
competition to staff a VM-02 Veterinarian-in-Charge position within the Meat Hygiene stream. The competition poster indicated that the list of
qualified candidates, referred to as an Eligibility List, “may be used to staff
similar positions.” Dr. Backx did not apply for this job as his job experience
and interests did not relate to Meat Hygiene and because he had not been
advised that the staffing results of the competition could be used in the
future to staff Animal Health positions.
[4]
However,
in early 2007, the CFIA used the Eligibility List
generated in the context of the August 2006 competition to staff a
VM-02 District Veterinarian vacancy relating to Animal Health. The
successful candidate was the respondent Dr. Nancy Griffith, who
had experience in Meat Hygiene at the VM-01 level.
[5]
The
applicant alleges that the London-based District Veterinarian position was an
ideal opportunity for him because he was seeking a promotion in the job he had
done for twenty-nine years and was not willing to move to another city.
[6]
In
November of 2007, the applicant filed a grievance under section 208 of the Public Service Labour Relations Act, SC 2003, c 22 [PSLRA],
challenging the employer’s
decision to use the August 2006 Eligibility List to
staff the disputed vacancy. He alleged that the decision to treat the two
positions as “similar” violated the CFIA’s staffing principles of fairness, openness and efficiency, and noted that
other veterinarians, both in and outside of the region, who were interested in
the District
Veterinarian position were prejudicially affected by this decision as
they were not advised that the Eligibility List could be used to staff Animal
Health related positions.
[7]
The CFIA denied the applicant’s grievance at the final
level, concluding that the positions were similar based on the experience
requirements. This decision was quashed on judicial review before this Court
and the matter was referred back for re-determination by a different final
level decision-maker (Backx v Canada (Canadian Food Inspection Agency),
2010 FC 480 [Backx (FC)], aff’d in 2011 FCA 36 [Backx (FCA)]). Justice O’Keefe of this Court found
that, based on the facts of the case, the employees would
not consider the positions similar even if the employer might and that the announcement advertising the staffing process did not
dissuade employees from making this distinction between the two types of
positions. Since the decision-maker failed to address the lack of similarity in
the positions, which was the applicant’s primary ground for his grievance, both
Courts held that the CFIA’s decision did not display the required
justification, transparency and intelligibility in the decision-making process.
Decision under
Review
[8]
A
new final level decision-maker was appointed to hear the applicant’s grievance.
The applicant did not wish to have a further hearing but provided further
written submissions, detailing his position on the matter and the appropriate
corrective action he requested. Of importance to this case, the applicant
submitted that the grievance concerned the decision to proceed with the
appointment of Dr. Griffith despite formal objections from affected
veterinarians and that the only way to correct the CFIA’s violation
of its staffing policy was to run another selection process to staff the
disputed position. The applicant notably stated:
The notion that they could be offered another
opportunity or that they could be assessed and added to the current VM-02 pool,
if they meet the requirements for entry to the pool, is not a corrective action
that addresses the particular lost opportunity. It must be understood that this
grievance is about the fact that a coveted position became available and those
who would have been the most interested and most suitable for the position,
were not given the opportunity to apply. (Exhibit B to the Backx affidavit, at
page 3: Applicant’s Record).
[9]
This
time, the applicant’s grievance was allowed but the CFIA
refused to grant the remedy sought by Dr. Backx, finding that “the appointment
made to the Animal Health position in the London District Office was valid and
cannot be revoked.” Rather, the CFIA offered the
applicant the opportunity to be assessed against the requirements in an ongoing
VM-02 selection process launched from March 2010 to June 2012 for the Ontario
Area, which was intended to create a pool of qualified candidates who would be
eligible for VM-02 vacancies as they arose anywhere in the Province of Ontario.
[10]
The
applicant alleges that he declined the CFIA’s offer because the only position
he was interested in obtaining was the VM-02 District Veterinarian position in London. Furthermore, there were no current vacant positions and the applicant found there was
little chance that the position he was interested in would become vacant in the
near future given that it had just recently been filled.
[11]
The
issues in this application for judicial review are the appropriateness of the
remedy offered to the applicant in the circumstances and the CFIA’s
refusal to revoke the impugned appointment.
Issues
[12]
The
questions raised by the applicant in this case are as follows:
1) What
is the appropriate standard of review?
2) Did
the CFIA
err
in concluding that it did not have the authority to revoke Dr. Griffith’s
appointment?
3) Alternatively,
was the remedy provided to Dr. Backx reasonable?
[13]
Contrary to the applicant’s suggestion, the CFIA’s final
level grievance decision-maker did not decide that they did not
have the authority to revoke the impugned appointment, but rather that the said
appointment could not be revoked because it was valid. The impugned
decision contains no determination with respect to its authority to revoke an
appointment. It is also clear from the recommendation of Lisa Martin, Senior
Labour Relations Advisor with the CFIA, which preceded
the decision, that the CFIA’s “inability to revoke the
appointment” does not refer to its legal authority to do so, but to the
validity of Dr.
Griffith’s appointment. I would therefore reformulate the
second issue as follows:
(2) Did the CFIA err
in refusing to revoke Dr. Griffith’s appointment?
Standard of
Review
[14]
Since
Dunsmuir v New Brunswick, 2008 SCC 9
[Dunsmuir], the standard of review
analysis
involves a two-step process. The reviewing court is first required to “ascertain whether the jurisprudence has already determined in a
satisfactory manner the
degree of deference to be accorded with regard to a
particular category of question. Second, where the first
inquiry proves unfruitful, courts must proceed to an analysis of the factors
making it
possible to identify the proper standard of review” (Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at
para 16; Dunsmuir, above, at para 62).
[15]
The
parties are in agreement that in the ordinary course, the employer’s decisions
in relation to staffing, such as the employee’s entitlement to a promotional
appointment with retroactive pay as a remedy, is
a “matter of discretion” reviewable on a standard of
reasonableness (Macklai v Canada (Revenue Agency), 2011 FCA 49 at para 7). That being said, the parties are
divided on the standard of review that the Court should apply to the question
of the revocation of the impugned appointment of Dr. Griffith.
[16]
As
Justice O’Keefe underlined in Backx (FC), above, at para 22, the case law regarding the
appropriate standard of review for a variety of final level decisions made under the Public Service Labour Relations Act, SC 2003, c 22 [PSLRA]
is not settled, so that a contextual approach should be adopted having regard
to the nature of the question.
[17]
The
applicant asserts that the CFIA denied his
request to re-launch the selection process solely on the basis of its view that
it did not have the authority to do so, which, in the applicant’s view, is a
question of law that falls outside of the specialized area of expertise of the
decision-maker. I have considered the applicant’s arguments and authorities
with respect to the decision-maker’s lack of independence
within the final level
grievance procedure under the PSLRA (Assh v
Canada (Attorney General), 2006 FCA 356 at
para 44-46 and 50-51;
Appleby-Ostroff v Attorney General of Canada, 2010 FCA 84 at para 21-23) and the Court’s ability to view the
interpretation of law or policy as questions on which it is at least as expert
as the administrative decision-maker (Endicott v Canada (Treasury Board),
2005 FC 253 at para 9; Blais v Canada (Attorney General), 2004 FC 1638
at para 16). However, as explained earlier, I am of the view that the Court
cannot regard the issue of revocation of the impugned appointment as one of
pure law, because the CFIA based its decision on its view
of the validity of the appointment and not on its lack of authority in law.
[18]
The
respondent referred me to a number of cases that have applied the standard of
reasonableness on non-adjudicative final level grievance decisions which
interpret and apply internal procedures and policies (Hagel v Canada (Attorney General), 2009 FC 329 at para
19-27, aff’d in 2009 FCA 364; Peck v Canada (Parks Canada), 2009 FC 686
at para 17-26; Spencer v Canada (Attorney General), 2010 FC 33 at para
18-32).
In light of these cases, I believe that the position of the respondent in this
case is more in line with the jurisprudence.
[19]
The
question at issue before the final decision-maker was one of mixed fact and
law. The question of the validity and revocability of an appointment involves a fact-based inquiry and hinges
on the application of administrative procedures similar to those applicable in
other non-adjudicable classification grievances. I
conclude that both the revocation of Dr. Griffith’s appointment and the
appropriateness of the CFIA’s corrective action are reviewable against the
standard of reasonableness.
[20]
For
the following reasons I find that the latter issue is most determinative in
this case. I would therefore deal with the issues in reverse order.
Analysis
Was
the remedy provided to Dr. Backx reasonable?
[21]
In
granting Dr. Backx’s first judicial review application, this Court noted in
obiter that “the only acceptable outcome would have been one that was in favour of the applicant and that remedied his lost ability to apply for
the district veterinarian
position.” Despite this indication from the Court, the CFIA
refused to grant the remedy sought by the applicant, namely to be allowed to
apply for the Animal Health MV-02 position in London, on the basis that there
was no cause for the current appointment to be revoked.
[22]
The applicant’s lost ability was, in fact, that to be
considered for a promotion to a position that both corresponded to his
experience and allowed him to maintain his residency in London. The applicant
submits that the CFIA’s offer to allow the applicant to be considered in
another selection process for positions that might become available in any city
is not a meaningful remedy. It offered the applicant nothing that he did not
already have, and completely failed to address the fact that due to the
employer’s mistake in treating the two positions as similar, potential
candidates, including the applicant, lost the opportunity to apply for the
promotional position that they qualified for.
[23]
The
applicant also argues that even if Dr. Griffith’s appointment could not be
cancelled, it was still necessary to re-run the competition to determine who
would have been the successful candidate, because the identification of the
successful candidate is necessary to determine the available corrective
measures for the CFIA to respond to the applicant’s
particular situation.
[24]
The
applicant’s arguments with this respect are well-founded. As per Dunsmuir, above, at para 47, a review for reasonableness “inquires
into the qualities that make a decision reasonable, referring
to both the process of articulating the reasons and the outcome” and these
qualities include “the existence of justification, transparency and intelligibility
within the decision-making process.” I agree with the applicant that the
outcome of the final level grievance decision is unreasonable, notably because
it is not responsive to the applicant’s claim and does not provide him with any
meaningful remedy.
[25]
There
is nothing to suggest that the CFIA’s offer remedied
the applicant’s loss of opportunity in any way, nor that the CFIA took
reasonable steps to provide the applicant’s with a suitable remedy in his
particular circumstances. Although it is open to the CFIA to
choose how to remedy the loss suffered by the applicant as it sees fit, it must
do so in a reasonable and meaningful manner.
[26]
The
respondent submits that there is no requirement either under the Canadian Food Inspection Agency Act, SC 1997,
c 6 [CFIAA]
or the Public Service Employment Act, SC
2003, c 22 [PSEA]
that an appointment opportunity be provided to employees and no right or
requirement is violated by not affording employees an opportunity to compete.
The respondent further submits that the concept of reasonableness refers to the
manner in which an existing right must be exercised and should not be used to
create a substantive right. As a result, a remedy that does not allow a grievor
to be considered for a specific position or that does not provide for the
revocation of the appointment is not unreasonable.
[27]
The
respondent’s position does not withstand scrutiny. Even if the CFIA has no
obligation to provide each and every potential candidate with an opportunity to
compete, there is no basis for the proposition that the CFIA does not have an
obligation to remedy the losses suffered by a more qualified candidate who
successfully grieved against the impugned appointment. The respondent has
failed to validly assert its argument before this Court and before the Federal
Court of Appeal and it granted the applicant’s final level grievance, hence
acknowledging that its selection process was vitiated and that the applicant
had lost an opportunity.
[28]
Any
risks that may arise from proceeding with an appointment the validity of which
can be successfully challenged subsequently must be borne by the deciding
authority. This is what the CFIA chose to do in spite of the complaints and the
controversy surrounding Dr. Griffith’s appointment. It is worth noting
that an August 16, 2008 communiqué of the CFIA [2008
communiqué], which will be discussed in further detail below, foresees the risk
for CFIA managers to make appointments pending a challenge to their validity
given the scope of the CFIA’s authority to cancel an appointment as
provided for in section 2.2 of its Human Resources Delegation of Authority [HRDA],
Schedule II. The relevant passage of the communiqué reads as follows:
HR Advisors should advise their client managers of
the narrow scope of authority 2.2 and the subsequent risk in proceeding with
appointments prior to the related staffing recourse and grievance periods
ending and prior to the resolution of any resulting staffing complaints and
grievances. In some situations, interim staffing arrangements, such as an
acting appointment, may be an appropriate staffing option.
[29]
The
respondent argues that the applicant failed to mitigate his damages when he
refused to apply for the VM-02 District Veterinarian position competition that
was offered to him as a remedy. As mentioned earlier, the applicant’s position
in his first and second grievance was that he was not prepared to move to
another city where a similar promotional position would be available. The
applicant’s obligation to mitigate his damages does not rise to accepting to
apply for positions that are not yet available and/or not located in the city
that he has worked and lived in for at least 29 years.
[30]
Having
regard to all of the circumstances of this case, I find that the CFIA’s
proposed corrective action is unjustified in its reasons and outcome, and is
therefore unreasonable.
Did
the CFIA err in refusing to revoke Dr. Griffith’s appointment?
[31]
Whether
the CFIA erred in refusing to revoke Dr. Griffith’s appointment depends on
factual circumstances which are not in the record before this Court, such as
whether an identical position is available in London or whether damages can be
afforded for the applicant’s loss. However, I find that the decision-making
process lacked justification, transparency and intelligibility in many
respects.
[32]
Subsection 13(1) of the CFIAA
gives authority to the President of the CFIA to appoint the employees. Section
7 provides that the President may delegate to any person any power, duty or
function conferred on him under the CFIAA or any other legislation. The
parties have raised and discussed the issue of whether the CFIA has
the authority to revoke a validly challenged appointment. Although the CFIAA
does not provide the President with an express authority to revoke an
appointment, comparable to the authority vested in the Public Service
Commission pursuant to section 81(1) of the PSEA, I agree with the applicant that
the right of the CFIA
to
revoke an impugned appointment following a successful grievance against it
exists as an implied term of the appointment.
[33]
The
final level grievance decision-maker did not explain why an appointment
made following an erroneous and unreasonable process was valid and irrevocable.
[34]
The
CFIA relies on a modification of its human resources policies, effective
December 9, 2010, as a result of the 2008 communiqué. While the former version
of section 2.2 of the CFIA’s HRDA confirmed its authority to “repeal an
appointment when it is determined that a fraudulent practice or breach of CFIA
statutory obligations, staffing policies or staffing values has occurred,” the
new version provides that an appointment can be “void when it is determined
that the appointed candidate committed fraudulent actions and/or made
fraudulent representations in the course of the staffing process.”
[35]
The
applicant submits that the CFIA should not be allowed to rely on a modification
of its own policy on available corrective measures that was initiated
subsequent to Dr. Griffith’s appointment. For his part, the respondent alleges that
the adjective “fraudulent” was meant to apply to both “practice” and “breach.”
It is submitted that the modification is simply a clarification of the language
of the policy (affidavit of Vickie Boulanger), so as to better reflect that the
CFIA’s authority to revoke an appointment is limited to circumstances when the
appointee acted fraudulently.
[36]
Notwithstanding
the fact that the former version of the HRDA was in place at the time of the
impugned appointment, the respondent did not present a compelling justification
for CFIA’s choice to read down its authority to cancel an appointment so as to
include only practices and breaches on the part of the appointed candidates.
[37]
The
respondent argues that according to Messier v Canada
(Solicitor General) (FCA), [1985] FCJ No 227, “an
appointment made as a result of fraudulent misrepresentations by a candidate
with respect to material facts is quite simply voidable” without recourse to a
specific power of revocation. However, one could argue that no statutory right to
grieve the CFIA’s staffing decisions, and recourse to have their legality
reviewed upon judicial review, would have existed if the decision-maker did not
have the authority to remedy its wrongdoings.
[38]
The
respondent takes the position that the PSEA does not apply to the CFIA because
this Court has ruled in Forsch v Canada (Canadian Food
Inspection Agency), 2004 FC 513 at para 18 that “due to the CFIA’s legislated power to appoint its
employees, granted by subsection 13(1) of the CFIA Act, the provisions of the [PSEA] dealing with the
appointment of
persons to the federal public service do not apply to the
CFIA: subsection 8(1) of the PSEA [current section 29(1) of the PSEA].”
In fact, the CFIA is vested with large powers with respect to
appointments of its employees by virtue of the CFIAA,
including the authority to create policies surrounding appointment procedures.
The respondent’s position implies that appointments made by the CFIA are final
and simply irrevocable under any circumstances, other than where fraudulent misrepresentations were made by the successful candidate. Yet, in my
view, had the legislature intended to create such an exception, it would have
done so in express and unequivocal terms.
[39]
For
these reasons, I would allow the application for judicial review. The
decision of the final level decision-maker is set aside and
the matter is remitted back to a different final level decision-maker of
the CFIA for redetermination in accordance with these reasons. Costs
shall follow the event.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This application for judicial review is allowed;
2.
Costs are granted in favour of the applicant; and,
3.
The decision of the final level decision-maker is set aside
and the matter referred back to a different final level
decision-maker of the Canadian Food Inspection Agency for redetermination in accordance with these reasons.
"Jocelyne
Gagné"
Email this Content