Docket:
T-1253-13
Citation:
2014 FC 438
Ottawa, Ontario, May 7, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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ERWIN CARLOS ORTIZ OSTERROTH
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Applicant
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and
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CHIEF OF DEFENCE STAFF
AND
ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of
the decision of T.J. Lawson, a General with the Chief of Defence Staff, [the
General], pursuant to section 18.1 of the Federal Courts Act, RSC 1985,
c F-7. The General denied the Applicant’s salary grievance.
I.
Issue
A. Was the General’s decision denying the Applicant’s grievance
reasonable?
II.
Background
[2]
The Applicant enrolled in the Canadian Forces as
an electrical and mechanical engineer [EME] on August 8, 2008. He has a
Bachelor degree in Engineering and a Master’s degree in Engineering Science.
[3]
On May 7, 2010, the Applicant submitted a
grievance in relation to a number of issues, including his pay level. According
to the affidavit of Johanna Erwins, a Grievance Analyst working in the Office
of the Director General Canadian Forces Grievance Authority, issues not related
to his pay level were processed in a separate file.
[4]
With respect to his pay level, the Applicant
claimed:
My pay level does not reflect the pay level I
was offered on enrolment. Further, currently there is no pay policy provision
that takes into consideration DEO years of experience in the field of
mechanical engineering prior to enrolment and engineering postgraduate
education acquired with no DND funding.
[5]
The Applicant sought his pay increment be
changed to level “C – 8,” retroactive to the date he began his training, as he
had a master’s degree and had accumulated several years work experience in his
field prior to being enrolled with the Canadian Armed Forces. As of the date of
his grievance, this adjustment would result in a disbursement of $11,820 to the
Applicant.
[6]
On April 18, 2011, D.M. MacKiegan, a Commander
with the Canadian Forces Recruiting Group Headquarters [the Commander], denied
the Applicant’s grievance. In so doing, the Commander noted that the
educational entry standards for an EME are a Bachelor of engineering, and there
is no requirement for an EME to hold a master’s degree or have prior work
experience. In the absence of policy dictating that additional engineering
training and experience warrants a higher pay increment, the Commander
concluded that the Applicant’s current pay increment was appropriate.
[7]
The Commander found that there was no evidence
that the Applicant was promised additional pay when he was recruited. On the
contrary, the Applicant’s Employment Transfer and Posting message, communicated
with his offer of employment, included information regarding his salary level,
a salary which the Applicant accepted.
[8]
On September 21, 2011, the Applicant requested
his grievance be considered by the Chief of Defence Staff, who serves as the
final authority for grievances.
[9]
On June 20, 2012, a mandatory referral of the
Applicant’s grievance was made to the Canadian Forces Grievance Board [the
CFGB]. Their purpose is to provide findings and recommendations to the Chief of
Defence Staff regarding a grievance at issue.
[10]
The CFGB concurred with the Commander that there
was insufficient evidence to establish that the Applicant was offered a higher
pay increment when he was offered enrolment by a Canadian Armed Forces
Recruiting Officer. The CFGB also noted that the decision to award additional
pay increments is usually made by a central authority, not at an individual
recruitment centre.
[11]
With regard to whether his previous skills and
qualifications were appropriately assessed, the CFGB determined that a Prior
Learning Assessment and Recognition [PLAR] ought to have been conducted to
determine the value of his prior skills and qualifications.
[12]
On May 23, 2013, the General denied the
Applicant’s grievance.
[13]
The General noted that the policy applicable to
the Applicant’s pay level was Compensation and Benefit Instruction 204.015,
which states:
To determine the rate of pay on enrolment,
transfer or change in class of Reserve Service based on pay credits that, in
accordance with orders or instructions issued by the Chief of Defence Staff,
reflect the amount of qualifying service, academic or other special
qualifications possessed by a application that are determined to be of military
value.
[14]
The General agreed with the recommendation of
the CFGB that a PLAR ought to have been conducted in the case of the Applicant.
The General noted that the purpose of conducting a PLAR is described in Defence
Administrative Orders and Directives 5031-1 as follows:
…a PLAR is normally conducted if the prior
learning of a CAF member…could result in a reduction or elimination of future
training and education time for progression with the CAF member’s military
occupation or in a military occupation to which the member is in the process
(sic) transferring…
[15]
The General determined that because the
Applicant’s education and skills experience did not result in any reduction of
training days, no cost savings were accrued by the Canadian Armed Forces. Thus,
a PLAR does not support the Applicant receiving a higher salary.
[16]
The General also noted that the authority
responsible for establishing the qualifications required for the Applicant’s
position has determined that only a bachelor’s degree is required for his
position, and there is no pay policy provision which takes into consideration
previous years of related experience or postgraduate training acquired without
Canadian Forces funding.
[17]
Finally, the General was unconvinced there was
any evidence to support the Applicant’s contention that he was told that he
would be receiving a different pay salary than the one which he ultimately
received.
III.
Standard of Review
[18]
The standard of review is reasonableness, as this
application involves a discretionary decision of mixed fact and policy (Harris
v Attorney General of Canada), 2013 FC 571 at para 30; Rompré v Attorney General of Canada, 2012 FC 101 at paras
21-23).
IV.
Analysis
[19]
While I agree with the Respondents that the Applicant’s
submissions are generally not relevant in respect of the judicial review sought
in his application or the grievance at issue, including the issues of breach of
contract, negligent misinterpretation and the doctrine of contra proferentem,
I have nevertheless considered whether the General’s decision meets the
standard of reasonableness.
[20]
The only argument made by the Applicant which is
relevant to his application relates to the allegation that the Canadian Forces
Recruitment Centre misled him on what his salary would be upon enrolment.
[21]
The General reviewed whether the Applicant’s
qualifications would justify a higher pay increment, in accordance with the Defence
Administrative Orders and Directives 5031-1 and Compensation and Benefit
Instruction 204.015 policies. The General concluded that given the
established requirements for the Applicant’s position, no training days would
have been saved by virtue of the Applicant’s prior qualifications, and thus, a
higher pay increment was not justified. This finding is justifiable,
intelligible and transparent.
[22]
Likewise, the General’s finding regarding that
the Applicant was not misled by a Recruitment Officer was reasonable. The
Applicant merely asserts that he was misled. While the notes of the Recruitment
Officer do not offer details of what salary was offered to him, these notes do
not support the Applicant’s claim that a higher salary was suggested. Given the
evidence that the Applicant’s current salary was later accepted, it was
reasonable for the General to conclude that the Applicant was not misled.
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