Date:
20130405
Docket:
T-1892-11
Citation:
2013 FC 348
Ottawa, Ontario, April 5, 2013
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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KELLY PLATO
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Applicant
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and
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CANADA REVENUE AGENCY
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
applicant, Mr. Plato, is one of the unsuccessful candidates in a job
competition run by the respondent, the Canada Revenue Agency [CRA or the
Agency]. In accordance with CRA’s policies governing such job competitions, Mr.
Plato filed a request for Independent Third Party Review [ITPR]. He made
several claims to the reviewer, who upheld three of them. Subsequent to the
issuance of the reviewer’s decision, CRA, through its Assistant Director Audit
Division, Southern Interior Tax Services Office, issued corrective measures in
an attempt to address the breaches found by the reviewer. In the present
application for judicial review, Mr. Plato seeks to have CRA’s corrective
measures decision set aside, arguing that it is unreasonable because it fails
to address one of the errors in the selection process identified by the
reviewer.
[2]
For
the reasons set out below, I have determined that CRA’s corrective measures
decision is unreasonable and, accordingly, must be set aside. To understand why
this is so, it is necessary to review the policies under which the decision was
made as well as the background to the decision.
Relevant
Background
[3]
Section
54 of the Canada Revenue Agency Act, SC 1999, c 17 [the CRA Act]
requires CRA to “develop a program governing staffing, including the
appointment of, and recourse for, employees.” In furtherance of this
requirement, CRA developed the CRA Staffing Program, which includes a Directive
on Recourse for Assessment and Staffing and the ITPR Processing Directive.
Under these directives, employees who are dissatisfied with a staffing decision
may request ITPR. The third party reviewer is charged with determining whether
errors that requestors allege to have been made in the staffing process were in
fact made by the Agency. Under section 7.4 of the Directive on Recourse for
Assessment and Staffing, the reviewer is limited to issuing one of the
following remedies:
1. ordering
that an error in the internal selection process be corrected (but the reviewer
has no authority to order how the error should be corrected);
2. recommending the
revocation of a successful incumbent’s employment; and
3. recommending
that a different CRA representative be involved in issuing corrective measures.
[4]
The
staffing policies leave the selection of the appropriate corrective measure to
an authorized representative of CRA.
[5]
In
this case, CRA advertised a notice
of job opportunity for the positions of tax auditor, excise tax auditor and
interior tax services officer within the Southern Interior Tax Services office.
CRA has developed a job profile for these positions that outlines several
technical competencies. Among them is the competency of Legislation, Polices
and Procedures. At the time of the job competition, the Agency had adopted and
was applying a standardized assessment tool for the assessment of this
technical competency. It subsequently ceased using this standardized tool, and
it was not in use when the corrective measures were issued in this file.
[6]
The
notice advising of the opportunity in this case provided general information
regarding how candidates would be assessed, including the technical
competencies that would be assessed. These comprised Writing Skills and
Planning, Organizing and/or Monitoring Results. No mention was made in the job
poster of there being an assessment of the technical competency of Legislation,
Policies and Procedures. The job poster indicated that candidates’ current
job-related performance would be considered at both the assessment and
placement phases, via reference checks, interviews and/or review of samples of
candidates’ work.
[7]
After
the initial screening phase, a hiring manager indicated that he wished the
selection board to assess candidates’ abilities with respect to interpreting
and applying relevant legislation. The selection committee developed a local
selection tool to evaluate these competencies, and assessed them by rating
candidates’ work done in connection with a selection of files that each
candidate had worked on. The selection committee reviewed the files in question
and assigned candidates scores based on evaluation of abilities with respect to
understanding and applying the relevant legislation.
[8]
In
assessing these abilities, the hiring manager did not wish to evaluate the
skills and knowledge that were tested as part of CRA’s formal technical
competency through the standardized assessment tool. Rather, the hiring manager
wanted a more specific and pointed assessment of the candidates’ knowledge of
and ability to apply the legislation in question. The evidence before the
reviewer was to the effect that the standardized selection tool, used to
evaluate the technical competency of Legislation, Policies and Procedures, was
incapable of providing the assessment required by the hiring manager. CRA’s
Directive on the Assessment and Selection Process, however, provides that where
a standardized assessment tool had been adopted by CRA for the assessment of a
technical competency, it must be used, unless the applicable authority in the
human resources department provides an exemption.
[9]
In
accordance with its policies governing the selection process, CRA provided a
debrief to candidates regarding the assessment of the candidates in a June 10,
2008 memo, addressed to each candidate. (The memo is termed a “Qualified
Notice” in CRA’s staffing policies.) In the Notice, CRA advised the recipients
that it had used file reviews “for another technical competency that may be
used at the placement stage of the selection process. This technical competency
is Legislation, Policies and Procedures.” The memo went on to note that “If a
hiring manager chooses to use the scores [from the local assessment of
Legislation, Policies and Procedure] at the placement stage, he/she will
determine what levels of proficiency will be acceptable.”
[10]
In
his complaint to the reviewer, Mr. Plato argued that CRA had acted arbitrarily
in assessing the Legislation, Policies and Procedures competency at the
placement stage by using a locally developed tool rather than the standardized
assessment process. The reviewer accepted Mr. Plato’s argument and concluded
that CRA “did not act in accordance with established policy. The communication
by the Agency was not transparent in contravention of the staffing principle;
the assessment of Legislation Policies and Procedures using a locally developed
tool (without the approval of an exception), where a standardized assessment
tool was available, was arbitrary” (at page 13 of the reviewer’s decision). The
reviewer also found that CRA’s communication about the Legislation, Policies
and Procedures criterion lacked transparency and that CRA had been unclear in
the job poster when it noted that the Planning, Organizing and/or Monitoring
Results competency would be assessed twice. The reviewer’s overall conclusions
and remedial order are set out at the end of her decision and provide as
follows (at pp 39-40 of the decision):
Conclusions
In summary, I have determined that the conduct of
the selection process was arbitrary, as defined in section 4.2 of Annex L
of the Staffing Program, Directive on Recourse for Assessment and Staffing for
the following reasons:
a.
There
was a standardized assessment tool for Legislation, Policies and Procedures,
but it was not used (as required in both Annex E and Annex E–1),
and the scores for Legislation were used at placement. It is my conclusion that
the Agency did not act in accordance with established policy. The assessment of
Legislation, Policies and Procedures using a locally developed tool, when a
standardized tool was available, was arbitrary.
b.
The
communication by the Agency regarding the assessment of Legislation, Policies
and Procedures was also not open and clearly understood in contravention of the
staffing principle transparency.
c. Indicating on the SOSR
[i.e. the Statement of Staffing Requirements] that POMR [i.e. Planning,
Organizing and/or Monitoring Results] would be assessed twice (and on the
Qualified Notice that POMR was assessed twice) was confusing and misleading for
candidates and therefore contrary to the staffing principle transparency.
Order
Pursuant to section 7.4 of Annex L, I order
these errors in the process be corrected by the Agency.
[11]
CRA’s
corrective measures decision commences by noting that the reviewer had
determined there were three errors in the staffing process, and then quotes
from the decision, listing those errors. The decision continues by stating
that, in order to correct the errors outlined by the reviewer, the Agency’s
representative was providing:
[…] a clear, detailed, and transparent explanation
of how the assessment of the following criteria was conducted during the
assessment stage and how these criteria were used at the placement stage:
•
Legislation
•
Policies
and Procedures
•
Planning,
Organizing & Monitoring
•
Planning
Organizing and/or Monitoring Results
The letter then goes on to
explain in detail how the staffing process was conducted and to clarify that
the file review was used to assess abilities with respect to application and
understanding of relevant legislation as opposed to being an actual evaluation
of the Legislation, Policies and Procedures technical competency. As the
applicant rightly notes, this explanation was provided to the independent
third-party reviewer, and she rejected it as unconvincing in light of the
contents of the job posting and the Qualified Notice. She wrote in this regard
(at p 13 of her decision):
Although it was the Agency’s position at the hearing
that two separate “qualifications” “(1) Legislation and (2) Policies and
Procedures” had been assessed, this is not consistent with what candidates were
told at the conclusion of the selection process. In the Qualified Notice,
candidates were advised in writing that the “technical competency”
“Legislation, Policies and Procedures” had been assessed using file reviews,
and the results might be used at the placement stage. In addition in the
Qualified Notice, candidates were further advised that locally developed
assessment tools had been used to assess “Legislation, Policies and
Procedures”.
[12]
The
applicant argues that the corrective measures decision should be set aside
because it is unreasonable in that it fails to address the first error
identified by the reviewer. More specifically, he asserts that the reviewer
made two findings that could not be adequately addressed through the issuance
of a mere explanation, namely, that CRA was required to assess the Legislation,
Policies and Procedures competency at the placement stage of the selection
process and that CRA erred in assessing this competency via a locally developed
assessment tool, which had not been appropriately approved under CRA’s staffing
policy.
[13]
The
respondent, for its part, argues that the decision is reasonable, essentially,
because all that occurred was that CRA used imprecise language in the Qualified
Notice and failed to actually describe what had occurred – which was not an
assessment of a technical competency but rather an assessment of only part of
that competency (i.e. abilities in respect of legislation) – and that this use
of imprecise language may be reasonably remedied through provision of a better
and more accurate explanation. The respondent stresses that, in light of the
broad authority afforded to management in matters of staffing under the CRA
Act and the deferential nature of reasonableness review, its corrective
measures decision should be upheld.
Standard of review
[14]
Both
parties concur that the standard of review applicable to the assessment of the
corrective measures decision is that of reasonableness as, indeed, was
determined in Macklai v Canada Revenue Agency, 2010 FC 528, aff’d on
other grounds 2011 FCA 49 [Macklai]. The applicant, however, asserts
that to the extent the corrective measures decision is premised on an
interpretation of the independent third party reviewer’s decision, that
interpretation must be correct, because to find otherwise would be unfair and
would allow the employer to unilaterally usurp the entire review process by
substituting its views for those of the reviewer. The applicant asserts that
such would be the result if the employer is allowed to rely on a reasonable –
as opposed to a correct – interpretation of the reviewer’s decision. The
applicant relies for this proposition on the decisions in Appelby-Ostroff v
Canada (Attorney General), 2011 FCA 84 [Appelby-Ostroff]; Assh v
Canada (Attorney General), 2006 FCA 358 [Assh] and Burstyn v
Canada (Customs and Revenue Agency), 2006 FC 744, arguing that the holdings
in these cases (that the employer in a grievance process must correctly apply
the law) apply by analogy to the interpretation of an independent third party
reviewer’s decision, which is asserted to be akin to a legal issue.
[15]
The
respondent, on the other hand, argues that one cannot bifurcate the corrective
measures decision in the manner proposed by the applicant because so doing
imports a correctness standard into the review of the corrective measures
decision. The respondent argues in this regard that a necessary inquiry in the
judicial review process in this type of matter will always be determining what
the independent third party reviewer determined, as the reasonableness of the
remedy will depend on what breach occurred. If the ruling on breach is reviewed
on a correctness standard, then, in effect, the selection of remedy will be
afforded no deference as its underpinning will be a matter for the court – as
opposed to CRA – to determine. The respondent notes that a somewhat similar
argument was rejected by this Court in Macklai, where the Appelby-Ostroff
and Assh cases were found to be inapplicable to the situation of a
CRA corrective measures decision.
[16]
I
agree with the respondent on this point for several reasons. First, it is not
logically possible to bifurcate the review of the reasonableness of the
measures imposed in a CRA corrective measures decision from review of the
findings made regarding the basis upon which the independent third party
reviewer decided. The two are inextricably intertwined. Second, it would be
anomalous to impose a correctness standard on this issue when it is clear that
if the independent third party reviewer’s decision were reviewed, a
reasonableness standard would apply. It would seem illogical that in the review
of a decision under which the employer possesses greater authority – as it
reserved to itself the issue of remedy – the Court would be more
interventionist. Finally, to a large extent, this issue has been settled in Macklai,
where Justice O’Keefe noted (at para 21):
I am satisfied that the question before the
applicant's supervisor was one that involved the exercise of his discretion in
his capacity as a manager and was dependent on the facts of the applicant's
particular case. Despite the applicant's assertions, his supervisor was not
dealing with a question of law or jurisdiction, nor was his decision precedent
setting.
[17]
Thus,
the reasonableness standard of review applies to the assessment of all aspects
of the corrective measures decision, including the CRA manager’s interpretation
in that decision of what the independent third party reviewer had decided.
[18]
In
terms of the content of that standard, as noted by the respondent, the
reasonableness standard of review is a deferential one, and mandates that a
court provide significant leeway to tribunals and not be hasty to substitute
its views for those of the decision-maker. As the Supreme Court of Canada noted
in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, a decision will be
reasonable if it is transparent, intelligible and justified and if the result
reached falls within the range of acceptable outcomes in light of the facts and
applicable law. The scope of the required deference is all the greater in a
situation like the present, where what is being reviewed is the employer’s
exercise of a discretionary power to determine the manner in which it will
implement a decision related to staffing, a matter that in this case is
excluded from the purview of collective bargaining and the grievance process
under the collective agreement.
[19]
However,
while the range of acceptable remedial decisions open to CRA in a case like the
present is broad, it is not limitless. At the end of the day, there still must
be some logical connection between the remedy selected and the breach it is
designed to address. If there is no connection, the remedy will be outside the
range of possible acceptable outcomes. As Justice Gagné recently noted in Backx
v Canadian Food Inspection Agency, 2013 FC 139 in assessing the
reasonableness of a remedial award in a staffing grievance, an award will be
set aside if “it is not responsive to the applicant’s claim and does not
provide him any meaningful remedy” (at para 24). To somewhat similar effect,
the courts have long held that there must be a rational connection between the
breach found by other sorts of labour tribunals and their remedial orders (see e.g.
Royal Oak Mines Inc v Canada (Labour Relations Board), [1996] 1 S.C.R. 369
at p 409).
Reasonableness of the decision
[20]
Turning,
then, to the heart of the matter, the CRA manager in the corrective measures
decision here noted that the third party reviewer had found three separate
breaches in the staffing process: two related to the lack of transparency in
the process and the other related to the failure to use the standardized
selection tool to evaluate the Legislation, Polices and Procedures technical competence
without authorisation from the appropriate CRA human resources authorities.
This interpretation of the reviewer’s award is reasonable and, indeed, correct.
[21]
However,
while the provision of a better explanation is logically tied to the
transparency failures identified by the reviewer, such an explanation is in no
way connected to the first breach, i.e. the failure to use the proper selection
tool for a competency. CRA’s explanation that what was being evaluated was not
the technical competency but rather just a part of it (and therefore that the
standardized tool was not necessary) was foreclosed to the Agency as the
reviewer heard and rejected this very explanation. In effect, by proceeding in
the way it has done, CRA has completely ignored the finding that there was any
breach at all in respect of the Legislation, Polices and Procedure. The
corrective measures decision is therefore unreasonable as it fails to provide
any remedy for the first breach found by the reviewer.
[22]
While
certainly not determinative of this outcome in this case, a memo written by an
HR manager to the CRA manger who made the corrective measure decision is
telling and highlights that the HR manager was unsure about the appropriateness
of the corrective measures decision that was eventually made. In the memo, the
HR manager states that she understood that “the intended approach to corrective
measures [was] to reissue the final assessment results.” She went on to note
that “[a]lthough [she] could see how this could address two of the three points
raised in the decision, [she was] unsure that this overall approach to
corrective measures will meet the expectations of the Requestor” (Exhibit “G”
to the affidavit of Shelley Welchner).
[23]
Thus,
the corrective measures decision will be set aside and the matter remitted to
CRA for re-issuance of corrective measures by a different member of management
than the one who issued the present decision. This ruling does not necessarily
mean that CRA is required to rerun the competition or excise consideration of
abilities in respect of legislation from the selection process. Indeed, as was
conceded by counsel for the applicant during oral argument, it may well be open
to CRA to retrospectively authorize the use of the local selection tool for
evaluation of the legislation policies and procedures competency in this case.
However, it is not for me to comment on what remedy must be selected, as this a
matter of discretion for the manager making this decision, who is required only
to ensure that his or her remedy is logically tied to the third party
reviewer’s decision and in some way addresses the breach that the third party
reviewer found to have occurred.
Costs
[24]
The
parties concurred that costs should follow the event, but differ as to the
appropriate quantum. The applicant suggested an all-inclusive lump sum amount
of $3000.00 whereas the respondent filed a draft bill of costs totalling
$2296.96.
[25]
Given
the sums involved and the nature of this matter, and exercising my discretion
under Rule 400 of the Federal Courts Rules, SOR/98-106, I have
determined that a lump sum award is appropriate in the amount of $2500.00.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review of the decision of
the Assistant Director Audit Division, Southern Interior Tax Services Office,
dated October 25, 2011 is granted and the decision is set aside;
2.
The
determination of corrective measures flowing from the decision of the
independent third party reviewer in the request filed by Mr. Plato is remitted
to CRA for re-determination
by a different manger; and
3.
Costs
are fixed in the all-inclusive amount of $2500.00, which are to be paid by the
respondent to the applicant.
"Mary
J.L. Gleason"
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