Docket:
T-1934-12
Citation:
2014 FC 281
Ottawa, Ontario, March 21, 2014
PRESENT: The Honourable
Madam Justice Strickland
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BETWEEN:
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PETER TATICEK
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Applicant
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And
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CANADA BORDER SERVICES AGENCY
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a final-level grievance decision made
pursuant to subsection 208(1) of the Public Service Labour Relations Act, SC 2003, c 22, s 2 (PSLRA). The
decision was made by the
Vice-President of the Human Resources Branch of the Respondent, the Canada
Border Service Agency (CBSA) and denied the Applicant’s grievance.
Background Facts
[2]
The Applicant is an
employee of CBSA. On December 30, 2008, he filed a complaint with the Public
Service Staffing Tribunal (PSST) regarding an internally advertised appointment
process, conducted under the Public Service Employment Act, SC 2003, c
22, ss 12, 13 (the PSEA), for a Team Leader position at the CS-03 group and
level. The Applicant alleged that the President of the CBSA abused his
authority by extending an acting appointment for the CS-03 Team Leader position
thereby providing the incumbent actor with an unfair advantage in gaining
experience in the position.
[3]
The parties
participated in mediation with respect to the complaint which resulted in the
execution of a document entitled “Terms of Settlement” (settlement agreement)
dated April 1, 2009, which stated that it constituted a “full and final
settlement of the specific issues and conditions associated with the complaint
of the Complainant.” Further, that the parties acknowledged that all aspects of
the matter had been resolved to their satisfaction in accordance with its
terms. The second item of the settlement agreement is at issue and reads as
follows:
2. to staff any current vacant acting
PL [sic] positions using the upcoming acting CS-03 selection process and
then from the upcoming indeterminate CS-03 selection process based on the
essential and asset qualifications for each of the positions.
[4]
The crossing out by
hand of the world “acting” was initialled by each party. The Applicant withdrew
his complaint subsequent to the signing of the settlement agreement.
[5]
Some time thereafter,
CBSA deployed an employee from the Canada Revenue Agency into a vacant CS-03
position and filled two other vacant CS-03 positions by way of internal
deployments. In response, the Applicant filed two grievances, later
consolidated, alleging that the deployments were in breach of the settlement
agreement. The Applicant sought to have CBSA comply with the settlement
agreement, correct the contraventions and take any other measures necessary to
remedy the situation.
[6]
On December 9, 2009,
a meeting was held, the purpose of which was to clarify the parties’ understanding
of the terms of settlement agreement. Their interpretations as to the intent of
the agreement differed. The Respondent’s view was that the second item of the
settlement agreement captured promotional appointments only and was intended to
provide the Applicant with a fair opportunity for promotion. It did not apply
to short term acting positions and deployments. The Applicant’s view was that
the word “any” meant all positions, including acting positions for short term
periods.
[7]
On March 29, 2012, a
final level grievance consultation was held by Ms. Rachel Stanford, a senior
labour relations advisor of CBSA, which resulted in Ms. Stanford preparing a
“Final Level Grievance Précis” (Précis) containing her analysis of the
grievance. Her analysis is summarized below:
•
The settlement
agreement dealt with a staffing issue regarding a pool of candidates that no
longer existed as it expired in fall of 2010;
•
There was a
misunderstanding as to the interpretation of the settlement agreement.
Management believed the subject term only applied to promotional appointments
or acting positions of over four months. The Applicant and the union believed
that “any” vacant positions were to be staffed by using the existing pools and
that this included all acting, short or long term, as well as indeterminate
appointments;
•
The PSST would not
review the situation because the complaint had been withdrawn and the file
closed. Further, there was no provision under the PSEA to file a new complaint
on the basis of a mediation or settlement not being respected as outlined in
the Howarth decision;
•
As the settlement was
not clear on what type of appointments or staffing actions were to be used for
these positions, “it would appear that it was an unfortunate misunderstanding”
between the Applicant and management.
[8]
Ms. Stanford
recommended that the grievances be denied.
[9]
On June 29, 2012, Ms.
Therriault-Power, Vice President of the Human Resources Branch of CBSA, issued
a “Reply to Grievance” which denied the grievances. It is that decision which
is the subject of this judicial review (Decision).
Decision under Review
[10]
In the Reply to
Grievance, the decision-maker, Ms. Therriault-Power stated the following as the
basis of her decision:
It is my understanding that the
memorandum of settlement was interpreted by management to apply only to
indeterminate promotional appointments. As the settlement was unclear on what
type of appointments or staffing actions were to be used for these positions, I
am of the opinion that it was an unfortunate misunderstanding between yourself
and management. As such your grievances are denied.
In addition, the remedy you are seeking cannot be implemented, as such, no
further corrective action will be forthcoming.
Issues
[11]
In my view, the
issues can be framed as follows:
1.
What is the
appropriate standard of review?
2.
Did the
decision-maker commit a reviewable error warranting the intervention of this
Court in deciding not to allow the grievances?
3.
Did the
decision-maker commit a reviewable error in concluding that the requested
corrective action could not be implemented?
Issue 1: What is the applicable standard of review?
Applicant’s Position
[12]
The Applicant submits
that correctness is the appropriate standard of review and must be applied in
cases where it would be unfair to allow the employer, who is a party to the
dispute, to have its final-level grievance decision insulated through the
application of deference on judicial review. In Assh v Canada (Attorney
General), 2006 FCA 358 at paras 44-46, 50-51 (Assh), the Federal
Court of Appeal referred to the “informal nature of the grievance process” and
“the fact that it is not independent of the employer” to suggest that a court
should not afford much deference to internal grievance board’s decisions on
questions that are not purely factual in nature. The Federal Court of Appeal
made similar comments in Johal v Canada Revenue Agency, 2009 FCA 276 at
para 32 (Johal) as well as in Appleby-Ostroff v Canada
(Attorney General), 2011 FCA 84 at para 23 (Appleby-Ostroff).
[13]
In Blais v Canada
(Attorney General), [2004] FCJ No 1996 (QL) at para 16 (TD) (Blais),
the Court applied a correctness standard in reviewing a grievance that
concerned a specific salary, reasoning that contract analysis fell within the
Court’s expertise. Similarly, in Endicott v Canada (Treasury Board),
[2005] FCJ No 308 (QL) at para 9 (TD) (Endicott), the Court applied a
standard of correctness to a final-level grievance involving the interpretation
and application of a Treasury Board policy regarding indeterminate
appointments.
[14]
The Applicant submits
that, in addition to the nature of the decision under review, other factors
point to the correctness standard in this case including the relative lack of
expertise of the employer, CBSA, in interpreting the settlement agreement (Blais,
above, at para 16) and the weak privative clause. This Court has held that the
privative clause under section 214 of the PSLRA is weak in contrast to that
governing adjudicators under section 233 (Assh, above; Hagel v Canada
(Attorney General), 2009 FC 329 at para 24, aff’d 2009 FCA 364 [Hagel]).
[15]
Also at issue is
whether the decision-maker had jurisdiction to grant the Applicant’s requested
remedy which raises questions of law not within the decision-maker’s expertise,
again attracting the correctness standard.
Respondent’s Position
[16]
The Respondent
submits that the appropriate standard of review for non-adjudicative final
level grievance decisions which interpret and apply internal procedures and
policies is reasonableness (Hagel, above, at para 27; Spencer
v Canada (Attorney General), 2010 FC 33 at para 32 [Spencer]; Insch
v Canada (Revenue Agency), [2009] FCJ No 1525 (QL) at para 14 (TD) [Insch];
Peck v Canada (Parks Canada), 2009 FC 686 at para 23 [Peck]; Backx
v Canadian Food Inspection Agency and Nancy Griffith, 2013 FC 139 at para
19 [Backx]). The Respondent submits that the present matter concerns how
a decision-maker in the grievance process, whose final ruling is not subject to
third party adjudication, considered the application of internal polices and
procedures to the specific circumstances of the Applicant’s situation. Thus,
like the above cases, it too should attract the standard of reasonableness.
[17]
In the alternative,
the Respondent submits that a standard of review analysis also yields a
reasonableness standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 64 [Dunsmuir]). There is a privative clause in section
214 of the PSLRA which suggests that non-adjudicative final-level grievance
decisions must be afforded a high degree of deference (Peck, above; Spencer,
above; Dunsmuir, above, at paras 52, 55).
[18]
The purpose of the
PSLRA is to resolve labour disputes expeditiously, inexpensively and informally
(Canadian Federal Pilots Association v Canada (Attorney General), 2009
FCA 223). The non-adjudicative dispute resolution process is a comprehensive
scheme worthy of deference even in the absence of third party adjudication (Vaughan v Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 at paras 31, 38-39; Hagel,
above, at para 26).
[19]
The nature of the
question before the final level decision-maker was whether the deployments
breached the settlement agreement and was one of mixed fact and law. Final
level decision-makers are generally given deference when interpreting and
applying policies and procedures which are issues of mixed fact and law (Dunsmuir,
above, at para 53; Peck, above, at para 21). The expertise of the
decision-maker in this case concerns labour relations which favours the
standard of reasonableness (Dunsmuir, above, at paras 55, 68), and the
application of internal policies and procedures is within the specialized
expertise of a final level grievance decision-maker (Hagel, above, at
para 25).
[20]
The Applicant takes
issue with how management interpreted and applied the settlement agreement,
which issue involves consideration of the circumstances relating to the subject
deployments being an area which the decision-maker is expected to possess
expertise.
[21]
Further, the
application for judicial review does not raise any constitutional or
jurisdictional questions or questions of general law that are of central
importance to the legal system as a whole (Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 at
para 25 [Canadian Human Rights Commission]).
Analysis
[22]
The first step in
determining the appropriate standard of review is to ascertain whether existing
jurisprudence has already resolved, in a satisfactory manner, the degree of
deference to be afforded to a particular category of question. If it does not,
then the Court must proceed to the second step which is to determine the
appropriate standard by way of a contextual analysis having regard to the
nature of the question, the expertise and purpose of the tribunal, and the
presence or absence of a privative clause. (Dunsmuir, above, at paras
57-64).
[23]
In this case, the
Applicant disputes the decision-maker’s dismissal of the grievance based on
management’s interpretation of the settlement agreement. Therefore, the
category of question before this Court is a final-level decision in the PSLRA
grievance process, where independent adjudication was not available, involving
the interpretation of a settlement agreement entered into and having effect
only on the parties to the agreement.
[24]
While the case law
referenced by the parties is helpful in setting out several principles
regarding final-level grievance decisions made under the PSLRA, none of those
cases involved the interpretation of a settlement agreement entered into
between the parties, which agreement formed the basis of a grievance. In most
of the cases cited by the Applicant, the issue before the court primarily concerned
statutory interpretation of relevant legislation (Johal, above)
attracting the correctness standard, or the application and interpretation of a
policy, directive or guideline that that did not hinge on key findings of fact
(Assh; Appleby-Ostroff; Endicott, Blais, all above).
[25]
The Respondent refers
to jurisprudence which is also not entirely analogous as, again, the
authorities cited do not involve interpreting a settlement agreement, but are
concerned with the application and interpretation of internal procedures and
policies (Hagel; Spencer; Insch, Peck, all above; Backx v Canada
(Canadian Food Inspection Agency), 2013 FC 139 [Backx])
[26]
Moreover, the case
law regarding the appropriate standard of review for various final‑level grievance decisions
made under the PSLRA is not well settled as Justice O’Keefe recognized in Backx
v Canada (Canadian Food Inspection Agency), 2010 FC 480 at para 22, aff’d
2011 FCA 36.
[27]
Accordingly, the Dunsmuir
second step contextual analysis is required.
[28]
A privative clause is
typically considered a strong indication of the reasonableness standard as it
suggests that that the intent of the legislators was to afford greater deference
to the administrative decision-maker. Here, there is a privative clause
contained in section 214 of the PSLRA and, although some prior jurisprudence
has described it as weak (Assh, above at para 35 (referring to section
96(3), the equivalent of the previous Public Service Staff Relations Act,
RSC 1985, c P-35); Hagel, above, at para 24), it has also been described
it as strong (Peck, above, at para 19). While the presence or absence of
a privative clause is not determinative (Canadian Human Rights Commission,
above, at para 17; Dunsmuir, above, at para 52), in my view, in this
case, it suggests the reasonableness standard.
[29]
However, the most
important factor to consider may be the nature of the issue that was before the
decision-maker (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR
339 at para 4; Canadian Human Rights Commission, above, at para
16).
[30]
Here, the Applicant’s
initial complaint pertained to section 77 of the PSEA and concerned an internal
appointment. That complaint was discontinued as a result of the settlement
agreement having been achieved. The present two grievances were brought
pursuant to section 208 of the PSLRA which permits an employee to present
an individual grievance if he or she feels aggrieved by the interpretation or
application, in respect of the employee, of a provision of any statute or
regulation, or of a direction or other instrument made or issued by the
employer, that deals with terms or conditions of employment (subsection
208(1)(a)), or, as a result of any occurrence or matter affecting his or her
terms of employment (subsection 208(1)(b)). This suggests that the settlement
agreement, which arose from the grievance process, should be viewed in the
context of that process and not solely as the interpretation of a stand-alone
contract.
[31]
Thus, in my view, even
if the decision-maker would not be owed deference in the interpretation of the
settlement agreement as a question of pure contract interpretation, this is tempered
by the context in which the contract arose and by the fact that its interpretation
would require considering relevant staffing policies and provisions. This
favours the reasonableness standard.
[32]
Further, the
settlement agreement in this case was entered into only between the parties,
and its interpretation involves only gleaning the parties’ intentions and is
not of central importance to the legal system as a whole. I would also note
that in Hagel, above, Justice Zinn quoted the following from the Supreme
Court of Canada concerning deference in the labour relationships scheme:
[26] When one examines the statutory scheme as a whole, it is clear
that it constitutes a comprehensive scheme for dealing with employment related
disputes, whereby Parliament has established an exclusive mechanism of
non-adjudicative dispute resolution for grievances which do not involve
demotion or termination, or disciplinary actions resulting in financial
penalty. This has implications for the level of deference the Court should show
to decision-makers acting within this scheme. In this regard, it is noted that
in Vaughan v. Canada, [2005] 1 S.C.R. 146, Justice Binnie,
writing for a majority of the Court, stated:
I do not accept […] that comprehensive legislative schemes which do not
provide for third-party adjudication are not, on that account, worthy of
deference. It is a consideration, but in the case of the PSSRA it is outweighed
by other more persuasive indications of clues to parliamentary intent.
…
While the absence of independent
third-party adjudication may in certain circumstances impact on the court’s
exercise of its residual discretion (as in the whistle-blower cases) the
general rule of deference in matters arising out of labour relations should
prevail” (emphasis added).
(Emphasis in Original)
[33]
In my view, while
there are factors that would support a correctness standard such as the
informal nature of the grievance process in the present case and the fact that
it is not independent of the employer, weighing these factors and applying a
contextual analysis points to reasonableness as the appropriate standard of
review on the second issue.
[34]
With respect to the
third issue, the decision-maker did not dismiss the requested remedies because
she found that she did not have the authority to order them, but rather because
she found that they could not be implemented, albeit without offering any
supporting rationale for that determination. Therefore, for the reasons above, the
appropriate standard of review for the final issue is also reasonableness.
Issue 2: Did the decision-maker commit a reviewable
error warranting the intervention of this Court in deciding not to allow the
grievances?
Applicant’s Submissions
[35]
The Applicant
submits, in essence, that the decision-maker erred by relying on management’s
subjective intention as the basis for disregarding the settlement agreement’s
clearly stated terms. Those terms apply to all staffing arrangements, not just
those involving indeterminate appointments.
[36]
The Applicant submits
that the settlement agreement is a form of contract pursuant to which the
Deputy Head agreed to “staff any currently vacant” team leader positions. It
cannot be that this provision is limited to staffing only indeterminate
promotional appointments given that staffing at the CBSA occurs by way of
appointments, acting appointments and deployments. The CBSA’s interpretation
does not even extend to staffing long-term acting appointments which was the
context of the Applicant’s staffing complaint resolved by the settlement
agreement.
[37]
The Applicant points
to the principles of contract interpretation in assessing the settlement
agreement. The golden rule of contract interpretation is that the “literal
meaning must be given to the language of the contract, unless this would result
in absurdity.” Context can be admitted to show the purpose for which the
contractual provision at issue was included, not to vary the meaning of the
words of a written contract (Gerald H. L. Fridman, The Law of Contract in
Canada (Carswell) at 437- 438). Evidence of one party’s subjective
intention is not relevant and extrinsic evidence should not be considered when
the contract is clear and unambiguous (Eli Lilly and Co v Novopharm Ltd,
[1998] 2 S.C.R. 129 at paras 54-59 [Eli Lilly]).
[38]
The CBSA conceded
that deployments are an available staffing option. In accordance with the broad
wording of the settlement agreement which applies to the “staffing” of certain
vacancies, staffing by way of deployment must be considered to have been
governed by the terms of the settlement. This conclusion is consistent with the
clear language of the settlement agreement.
Respondent’s Submissions
[39]
The Respondent
submits that the decision to deny the grievances on the basis that there had
been no breach of the settlement agreement was reasonable.
[40]
The PSLRA equips an
adjudicator with jurisdiction to decide whether a settlement is final and
binding on the parties and whether each party complied with it, where the
dispute underlying the settlement agreement is linked to the original grievance
(Canada (Attorney General) v Amos, 2011 FCA 38, [2012] 4 FCR 67 (CA) at
paras 71-72 [Amos]).
[41]
The Respondent also submits
that the Applicant’s dispute concerned the settlement agreement which is not
linked to his complaint to the PSST. His complaint to the PSST concerned the
extension of an acting appointment in 2008, which was withdrawn. The alleged
breach of the settlement agreement relates to deployments occurring after April
9, 2009. The PSST may have retained jurisdiction over implementation if the
Applicant had stipulated that he would withdraw his complaint only once the
settlement agreement had been fully implemented as in Amos, above, but
this was not the case. Given this, it was reasonable for the decision‑maker,
while acknowledging the misunderstanding between the parties, to treat the
settlement agreement as final and binding and therefore, to deny the
grievances.
[42]
The Respondent also submits
that management interpreted and applied paragraph 2 of the settlement agreement
in accordance with its understanding of that provision. It stated that only
currently vacant CS-03 Team Leader positions were to be staffed using the
acting and indeterminate CS-03 selection processes and were to be based on
qualification. Ms. Diane Binney, by email dated January 22, 2010, stated that
short-term acting appointments offered when the incumbent was on holidays were
not staffing appointments to vacant PL positions as contemplated in paragraph 2
of the settlement agreement.
[43]
With respect to
deployments, the Respondent submits that it is clear that the CS-03 positions
required specific skills and experience. It would be contrary to the PSEA to
staff these positions with employees who were not qualified.
Analysis
[44]
As to the reasons for
the Decision, the decision-maker does not explain why she came to her
conclusion, but merely states that the settlement was unclear, there was a
misunderstanding and adopts management’s interpretation of the agreement
denying the grievances. Jurisprudence establishes, however, that a précis or an internal memorandum with
recommendations to the decision-maker may serve as reasons (Wanis v Canadian Food
Inspection Agency, 2013 FC 963 at para 21; Miller v Canada (Solicitor General), 2006 FC 912, [2007] 3 FCR 438 at para 62). In this case,
the Précis was relied on by the
decision-maker in coming to her decision and, accordingly, its contents should
be considered as part of the reasons
for the final Decision.
[45]
The Précis refers to
the decision of Howarth v Deputy Minister of Indian Affairs and Northern
Development et al, 2009 PSST 11 [Howarth] in stating that
“there is no provision under the PSEA to file a new complaint on the basis of a
mediation or settlement not being respected [...]”.
[46]
In Howarth,
above, the applicant had brought a complaint concerning an appointment process.
A settlement agreement was reached and the complaint was withdrawn.
Subsequently, however, a new complaint was filed claiming that the deputy head
had abused his authority pursuant to s. 77 of the PSEA. In the new complaint,
the applicant sought to continue her initial complaint on the basis that the
respondent had failed to comply with the settlement agreement terms.
[47]
When considering the
legal effect of a discontinuance the PSST, in Howarth, above, referred
to Canada (Attorney General) v Lebreux, [1994] FCJ No 1711
(CA)(QL) (Lebreux). In Lebreux, the grievor discontinued his
grievance concerning his suspension and dismissal from employment pursuant to
an agreement reached between the parties. He later asked the then Public
Service Staff Relations Board (the Board) to set a new date for a hearing on
the basis that there had been no satisfactory agreement between the parties.
The Board quashed its earlier decision terminating the proceeding and agreed to
hear the grievance on its merits. The Federal Court of Appeal found that the
adjudicator erred in doing so, and that once a withdrawal is filed, the Board
loses jurisdiction to hear a grievance:
[12] From the time the respondent discontinued his grievances the
Board and the designated adjudicator became functus officio since the matter
was then no longer before them. The Board was not required either to inquire
into the merits or feasibility of such a discontinuance or to agree to accept
or reject it. The act of discontinuance without more terminated the grievance
process in respect of which it was filed.
[48]
The PSST also noted
that Lebreux was
analysed and applied in Maiangowi v Treasury Board (Department of
Health), [2008] CPSLRB No 6 (QL) [Maiangowi]. In Maiangowi,
the grievor’s representative had requested that the grievance be reopened,
and scheduled for a hearing, on the ground that the employer had breached the
settlement agreed to by the parties. She asked the PSLRB to take jurisdiction
over the enforcement of the settlement agreement. The adjudicator, relying on Lebreux,
held as follows:
[61] In my view, Lebreux
stands for the proposition that the withdrawal of a grievance is a bar to
adjudication, not only regarding the merits of the grievance but also the
enforcement of the settlement if I had that jurisdiction. Once a grievance is
withdrawn, the Board loses jurisdiction over all matters related to it. There
is simply no longer any grievance before the adjudicator.
[49]
Based on this, in Howarth,
the PSST concluded that once the original complaint was withdrawn, that the
tribunal lost jurisdiction and the withdrawal was a complete bar to
adjudication. Further, that subsections 77(1)(c) and 30(2) of the PSEA
permitted a complaint based on abuse of authority and/or application of merit
but that an alleged breach of a settlement agreement was not a proper ground
under those sections.
[50]
Recently, in Amos,
the Federal Court of Appeal found that the adjudicator had jurisdiction under
the PSLRA to determine whether the parties’ settlement agreement was final and
binding; to hear an allegation that a party was in non-compliance with a final
and binding settlement agreement; and then to make the appropriate remedial
order. The adjudicator did not reopen the case on the merits, as there was a
final and binding settlement agreement in place, but did do so in order to
determine if there had been compliance with the agreement. The Court noted that
the dispute underlying the settlement agreement was linked to the original
grievance which had not been withdrawn and concluded:
[77] […] The appellant’s settlement agreement dispute is
intrinsically related to his underlying and persisting grievance, originally
referred to adjudication, and properly within the jurisdiction of the Adjudicator.
[51]
In my view, the
circumstances of the matter before me differ from Howarth, Maiangowi and
Amos, all above. Here, the settlement agreement is based on the
original complaint which was withdrawn. The Applicant is not, however, seeking
to continue or revive the original complaint. Rather, and unlike Amos, the
Applicant filed new grievances pursuant to subsection 208(1), which were based
on alleged contraventions of the settlement agreement and which have not been
withdrawn. While Howarth found that s. 77(1)(c) and s. 30(2) of
the PSEA did not ground a new complaint based on an alleged breach of the
settlement agreement, here the new complaint is grounded in subsection 208(1). While the Précis states that there is no
provision under PSEA to file a new complaint on the basis of the settlement
agreement, the decision-maker did not refuse to address the new grievances nor
did she clearly reject them as being outside the scope of subsection 208 and the
decision-maker’s jurisdiction. In my view, the decision-maker alluded to it but
did not squarely address this issue in the reasons.
[52]
Regardless of that
issue, the Applicant’s concern before the decision-maker was the alleged breach
of the settlement agreement which, in my view, if it were to be addressed, necessarily
required the interpretation of the agreement in resolving the dispute. There is
also no issue between the parties that the settlement agreement was final and
binding.
[53]
The question is,
therefore, whether the decision-maker reasonably adopted management’s
interpretation of the settlement agreement.
[54]
As noted above, the
following paragraph of the settlement agreement is in dispute:
…to staff any current vacant acting PL [sic] position using the
upcoming acting CS-03 selection process and then from the upcoming
indeterminate CS-03 selection process based on the essential and asset
qualifications for each of the positions.
[55]
In my view, “any
current vacant acting PL [sic] position”, is worded broadly and on its
face, and in the absence of any applicable policy or guidelines to the contrary,
could be read to include deployments.
[56]
The record contains various
communications from the parties generated after the dispute arose as to the
interpretation of the settlement agreement which are intended to set out their
respective views on their interpretation of the agreement.
[57]
In that regard, I
would note that the general
law of contract is applicable
to a settlement agreement
unless specifically excluded by statute or a collective agreement (P.W. Hogg
and P. J. Monahan, Liability of the Crown (3rd ed, 2000) at 238-240).
Settlement agreements concluded under the PSLRA have previously
been analyzed according to common law contractual principles (Castonguay v
Treasury Board (Canada Border Services Agency), 2005 PSLRB 73 at paras
17-23).
[58]
Thus, while
management and the Applicant were entitled to their respective subjective
beliefs as to what was intended to be achieved by the settlement agreement, evidence
of a party’s subjective intention is not relevant. The Supreme Court of Canada
stated the following in Eli Lilly, above:
[54] […] The contractual intent of the parties is to
be determined by reference to the words they used in drafting the document,
possibly read in light of the surrounding circumstances which were prevalent at
the time. Evidence of one party's subjective intention has no independent place
in this determination.
[59]
Labour arbitration
jurisprudence also indicates that the fundamental rule of written settlement
interpretation in the labour context is the same as it is for contract and
statutory interpretation. That is, the words used must be given their plain and ordinary meaning unless the result would be
absurd or it is apparent from the structure of a provision or the settlement read as a whole that a
different or special meaning is intended (Exepertech Network Installation
Inc v Communications Energy and Paperworkers Union of Canada, 2010 CanLII
69131 (CA LA)). Words in a contract take their meaning from the context in
which they are used and the intent of the parties (Eli Lilly, above).
[60]
Thus, in my view, the
parties’ after the fact submissions to the decision-maker on their subjective
intentions have little relevance and should not have been the sole basis of the
Decision. Rather, the decision-maker should have based her determination on an
interpretation of the terms of the settlement agreement and the context in
which it was made. Even if the wording was not clear, and for that reason some
reliance on extrinsic evidence were permissible, in the absence of any reasons
for accepting one party’s interpretation over the other, there is no reasonable
basis for merely adopting management’s interpretation.
[61]
Given the foregoing, in
my view, this matter should be remitted back on the basis that the
decision-maker erred in basing her its decision solely on management’s interpretation
of the settlement agreement which was not reasonably supported by the record.
Further, as to the decision-maker’s jurisdiction to consider the grievance, the
reasons do not provide justification, transparency and intelligibility as to
the decision making process and do not permit this Court to determine whether
the Decision is within the range of acceptable outcomes defensible in respect
of the facts and the law (Dunsmuir, above, at para 48; Newfoundland
and Labrador Nurses’ Union v Newfoundland &
Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708 at para 14)
Issue 3: Did the decision-maker commit a reviewable
error in concluding that the requested corrective action could not be
implemented?
Applicant’s Submissions
[62]
The Applicant submits
that the decision-maker failed to provide reasons as to why she could not
implement the requested remedy, and as for the position that she did not have
legal authority to do so, this is wrong in law.
[63]
The statutory right
of employees to grieve CBSA’s staffing actions, including deployments, implies that
deployments can be revoked as a result of a successful grievance (MJB
Enterprises Ltd v Defence Construction (1951) Ltd, [1999] 1 S.C.R. 619 at para
27; subsections 208(1) and (2) of the PSLRA).
[64]
Successful
promotional grievances reveal that a wronged employee will be compensated and
the fact that an employee did not work in the position in question will not
prevent compensation where the employer is at fault (Abbotsford Police
Department v Teamsters Local Union 31 (Allen Grievance) (2008), 179 LAC (4th)
305 (Coleman) at para 115; Sudbury Regional Hospital v OPSEU, Local 659
(Paquette), [2002] OLAA No 1035 at para 9 (QL)).
[65]
The Applicant submits
that the same legal principles concerning the determination of appropriate
corrective measures by a neutral arbitrator or arbitration should apply to a
final level decision-maker at the CBSA.
[66]
The Applicant points
to Macklai v Canada Revenue Agency, 2011 FCA 49 at para 7, where it was
confirmed that the Canada Revenue Agency has the discretion to pay retroactive
back pay where an employee has been wrongfully denied a promotion. Even if this
Court finds that the final-level decision-maker could not rescind the
deployment, CBSA was still required to compensate the Applicant for breach of
the settlement agreement consistent with his request for “any other measure to
remedy the situation” and “to be made whole.” Damages for breach of contract
are calculated in accordance with the expectation of the parties at the time
the contract was made and should place the innocent party in the position he
would have been had the contract been fulfilled. The only limit to the extent
of damages recoverable is
where damages are too remote (Mustapha v Culligan of Canada, 2008 SCC
27, [2008] 2 S.C.R. 114 at para 19; BG Checo International Ltd v BC Hydro and
Power Authority, [1993] 1 S.C.R. 12 at para 48).
[67]
While it is
impossible to know if the Applicant would have been the successful candidate,
the final-level decision maker has the ability to award damages for the “loss
opportunity” to obtain one of the three positions sought (Ontario (Ministry
of Community, Family and Children’s Services v OPSEU, [2004] OGSBA No 192
(Crown Employees Grievance Settlement Board) at paras 14-21; Alberta Health
Services v Alberta Union of Provincial Employees (McGinnis Arbitration),
[2011] AGAA No 42 (Sims, QC) at paras 37-47; OPSEU v Ontario (St Lawrence
Parks Commission), [2010] OGSBA No 113 (Herlich) at paras 14-27; Grand
Yellowhead Regional Division No 35 v CUPE, Local 1357 (Proulx Grievance),
[2010] AGAA No 47 (Tettensor) at paras 16-21). Arbitral jurisprudence has
awarded damages for lost opportunity to obtain a promotion in accordance with
the common law damages for lost opportunity (Chaplin v Hicks, [1911] 2
KB 786 (CA) and the law of damages for lost opportunity has been applied in
Canadian courts (Eastwalsh Homes Ltd v Anatal Developments Ltd, [1993]
OJ No 676 (QL) at para 42 (CA)).
Respondent’s Submissions
[68]
The Respondent
submits that the requested remedy could not be implemented for three reasons.
[69]
First, the pool of
qualified candidates established from the CS-03 selection process expired in
the fall of 2010, and as a result, no further appointments could be made from
it.
[70]
Secondly, the
deployment itself is not the subject of the Applicant’s grievance which relates
to an alleged breach of the settlement agreement. Subsections 208(1) and (2) of
the PSLRA may entitle an individual to grieve a deployment. However, subsections
209(1)(c) and 211(b) of the PSLRA specify the category of deployment-related
grievances that can be referred to adjudication by the PSLRB. Subsection
209(1)(c)(ii) provides that only a grievance related to a deployment without
the employee’s consent, where an employee’s consent is required, can be
referred to the PSLRB. Section 211 prohibits referring the adjudication of a
grievance on “any deployment under the PSEA, other than the
deployment of the employee who presented the grievance”. In requesting the
Court to revoke the deployment, the Applicant is seeking to achieve indirectly
what the PSEA expressly prohibits him from doing directly. There is also no
indication that the individuals deployed were not qualified for the positions.
[71]
Third, the request
for damages is too remote. The settlement agreement did not provide for the
staffing of CS-03 positions by the Applicant, rather positions were to be
staffed by employees found to be qualified in the CS-03 selection process. If the
CS-03 position had been staffed from the pool of qualified candidates, there is
no evidence that the Applicant would have been successful. A request for
damages for lost opportunity is speculative in nature and the Applicant has not
demonstrated that he had a reasonable chance of success (Harvin D. Pitch and
Ronald M. Snyder, Damages for Breach of Contract (Toronto: Carswell,
1989) 3-1 to 3-18; Graybriar Industries Ltd v Davis & Co (1990), 46
BCLR (2d) 164 (SC)).
Analysis
[72]
The decision-maker in
this case did not state that she lacked the authority to implement the remedy.
Rather, she states:
In addition, the remedy you are seeking cannot be implemented, as such, no
further corrective action will be forthcoming.
[73]
There is no analysis
or rationale offered in support of this finding in the Decision or in the
Précis. The Applicant’s grievances requested that: CBSA comply with the settlement
agreement, correct the contraventions and take and any other measures to remedy
the situation; and, request the “PSST mediation agreement,” to be
adhered to “when it comes to the present temporary replacement for ACROSS Team
Lead position occupied by Marion as stipulated in the Terms of Settlement,” and,
“To be made whole.”
[74]
A review for
reasonableness “inquires into the qualities that make a decision reasonable,
referring to both the process of articulating the reasons and to outcomes” and
these qualities include “the existence of justification, transparency and
intelligibility within the decision-making process” [Dunsmuir, above, at
para 47].
[75]
Given that the
grievances were dismissed, it was technically unnecessary for the
decision-maker to address the issue of remedy; however, she states that the
remedy could not be implemented. Without any reasons as to why the remedy could
not be implemented, it would be speculative to attempt to assess the basis for
that decision and whether it is a reasonable finding.
[76]
In any event, given that I have found that this matter should be
remitted back for reconsideration, it is up to the decision-maker , if
necessary, at that time, to craft an appropriate remedy (Backx, above,
at para 25).
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