Docket: T-518-13
Citation:
2014 FC 741
Ottawa, Ontario, July 24, 2014
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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MURRAY WILKINSON, JERRY JESSO, CHRISTOPHER ARGUE, JAMES
BASTARACHE, CATHERINE BLACK, CYNTHIA BURNS, LAURA CLARKE, RICHARD CUZZETTO,
ANGELO DE RIGGI, JEFF DUNK, GEORGE DURSTON, JACQUES FRECHETTE, LILY-CLAUDE
FORTIN, FRANK GONCLAVES, NELSON GUAY, CLAUDE HARVEY, MARK HASTIE, MARK HAYES,
FANNY HO, ALANA HUNTLEY, MARK KAPICZOWSKI, KEVIN KELLY, ROSE-ANN JANG, ALAN
JOHNS, ANGELIA JOHNSON, CAMERON JUNG, BOB LEDOUX, ROBERT LOHNES, INA MCRAE,
DEBBIE MAIN, GREGORY MCKENNA, SHANE MCKINNON, KAREN MCMAHON, MICHAEL
MCPHALEN, MAUREEN MILLER, MANJIT SINGH MOORE, RON NAULT, FIONA NORTHCOTE,
HENRY PETERS, LINDA ROBERTSON, RALPH SCHOENIG, PATRICK SCOTT, DARLENE STAMP,
RICHARD STEFANIUK, DOUG TISDALE, KEITH WATKINS, HARALD WUIGK
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Applicants
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants seek the judicial review,
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of
the decision by the President of the Canada Border Services Agency [the Deputy
Head] made on February 25, 2013 rejecting the recommendation of the Classification
Grievance Committee [the Committee] set up to look into the applicants’
classification grievances. For the reasons that follow, the judicial review
application is granted.
I.
Facts
[2]
The applicants are all Canada Border Services
Agency [CBSA] employees who grieved their employment classification under paragraph
208(1)(b) of the Public Service Labour Relations Act, RSC 2003, c 22.
They are all classified as FB-06 (Frontière-Border) and they are designated as “Manager, Regional Programs”. They
share the same work description and the classification examination was concluded
on February 21, 2007.
[3]
However, in 2010, the applicants challenged the
classification. A Classification Grievance Committee was convened and the
employer as well as the applicants had an opportunity to present multiple
written and oral submissions before the Committee. The Committee met on at
least three occasions from April to June 2012 in order to examine with obvious
care the grievance.
[4]
On July 18, 2012, the Committee determined that
the factor designated as “Decision Making”, which is one of the factors taken
into account in making the classification decision, should be moved from degree
5 to degree 6. As such, that increased the number of points allocated bringing
the number of points to a level such that a classification to the FB-07 level
became appropriate.
[5]
Following numerous delays and requests for
extension sought by management, month after month, the Deputy Head concluded
his deliberations and decided on February 25, 2013, in a two-page letter,
against the recommendation made by the Committee. It is from that decision that
judicial review is sought.
[6]
A quick return on the history of FB-06 may be
useful. The classification for that position created in 2006 in the wake of a
government reorganization that resulted in the creation of the Canada Border
Services Agency (Canada Border Services Agency Act, SC 2005, c 38), was
set at FB-06, with an effective date of February 21, 2007. Both the job content
and the classification were challenged shortly thereafter through the grievance
process. Because the job classification grievance is obviously dependant on the
job content, it was held in abeyance until the job content grievance had been
disposed of; the job content grievance was successful in the fall of 2010. In
spite of the changes to the job content, the position was still classified at
the group and level FB-06 in December 2010. Thus, the classification grievance
proceeded on the basis of the new job description, which had produced a
classification at the same level as that originally identified in February
2007.
[7]
The Classification Grievance Committee examined
a number of factors that are considered in the classification of positions
designated as “Manager, Regional Programs”. The Committee concluded that all of
the factors listed should remain at the same degree, but for the factor
referred to as “Decision Making”. The following chart summarizes what the
situation was prior to the grievance. Obviously, it also summarizes the
situation after the Deputy Head made his decision, as he rejected the
Committee’s recommendation:
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Factors
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Degree
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Points
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Knowledge
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5
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135
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Analytical Skills
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5
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115
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Communication Skills
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4
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070
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Interaction
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4
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110
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People and
Operational Management
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3
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080
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Decision Making
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5
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140
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Physical Effort
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C2
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010
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Sensory Effort
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2
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004
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Risk to Health
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3
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020
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Work Environment
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Psychological
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A3
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010
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Physical
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B2
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010
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[8]
The only difference between the recommendation
and the Deputy Head’s decision is in the difference in the degree that should
be ascribed to Decision Making. The recommendation was to go to a degree 6 and
the Deputy Head left it at a degree 5. According to the Classification Standard,
the degree 6 for Decision Making would have added 35 points, thus bringing the
total above 730. The other factors that were contested were: Knowledge,
Communication Skills, and People and Operational Management. None of
them found favour with the Committee following the same kind of evaluation that
was done with respect to “Decision Making”. The Committee’s decision concerning
these other factors has not been challenged.
[9]
The examination of factors is done in the
following fashion. Fundamentally, a classification exercise requires that a
work description be evaluated against the appropriate Classification Standard.
It is the value of jobs that is the focus of the exercise, not how the job is
actually performed. The factor, or element, “Decision Making” is described in
the Classification Standard; then, the Classification Standard defines degrees.
It will be the task of the Committee, in considering a classification
grievance, to evaluate the work description against those definitions. In order
to assist, guidelines are provided in the form of examples of work activities
for the different degrees.
[10]
In this case, “Decision Making” and degrees 5, 6
and 7 are defined in the Classification Standard as:
•
Decision Making:
This element
recognizes the increasing level of responsibility for decision making that
stems from the level of judgement and latitude applied in making decisions, and
the impact of the decisions made. Decisions can be policy, program development,
program/service delivery or compliance in nature and can include human,
financial or physical resources. For the purposes of this element, a decision
should be interpreted in its broadest sense to include substantive expert
recommendations or advice.
•
Degree 5:
Decisions impact
the implementation and delivery of programs and services. Decisions require
autonomy and independence and are typically related to the organization and
coordination of program service objectives.
•
Degree 6:
Decisions impact
the overall determination of approaches to program development or delivery
within a variety of integrated operations or program/project areas. Decisions
are based on significant managerial or subject matter expertise.
•
Degree 7:
Decisions impact
the establishment and achievement of broad operational objectives. Decisions at
this level typically affect how the component program/operational areas will
achieve the Agency’s overall objectives.
II.
Decision under review
[11]
The decision of the Deputy Head is to be found
in a letter signed by the Vice President of Human Resources of CBSA. For all
intents and purposes, the decision is captured in the following two paragraphs:
In its report, the Committee states that “the
subject positions are not required to make decisions which require in-depth
consideration of the relationships between programs or national priorities;
these considerations would be addressed at more senior levels of management”.
Rather, the Committee recognizes that “the subject positions must make
decisions on the approaches to program delivery in relation to various projects
and/or programs and that decisions are based on significant subject matter
expertise”. The Committee further goes on to say that decisions required of the
subject positions are focused on the implementation of policy objectives and
the delivery of their program and operations.
The intention behind the Manager, Regional
Programs position is that it makes decisions that affect the ability to
implement and deliver the programs in the region, and makes decisions and
recommendations on individual cases that require expertise in a specific
program area. This is clearly articulated by the management representatives who
provided the organizational context related to the work performed by the
Manager, Regional Programs, in support of the fact that the position does not
directly affect change to national policies or multi-disciplinary program
development. There is no indication in the report that the Committee considered
organizational context in making its recommendation, as is required by the
application guidelines for classification standards.
[12]
As can been seen, the Deputy Head takes issue
with the assessment made by the Committee of the Decision Making factor. He
seems to find an argument in two passages taken from the Committee report. The
Deputy Head then goes on to what he considers the intention behind the
position. He does not explain how that can be relevant to a classification exercise.
Actually, he faults the Committee for not having considered the organizational
context, without further explanation. The letter simply concludes that the
President (Deputy Head) cannot support the “conclusion
that there is a correlation between the work performed and degree 6 of the
Decision Making factor”. As a result, the classification of the
applicants remained at the FB-06 level.
[13]
The decision made by the Deputy Head was
supported by a memorandum prepared by the Vice President of Human Resources at
CBSA which was specifically approved by the Deputy Head. One can read in the
paragraph entitled “Recommendation” that “[t]he Agency’s position is that the FB standard has not been
applied properly and therefore the Decision Making factor is inflated”.
III.
Points in Issue and Standard of Review
[14]
The applicants make two arguments in their
judicial review application. First, they claim that the Deputy Head was wrong
to reject the recommendation of the Classification Grievance Committee. The
rationale offered by the Deputy Head cannot be said to be reasonable. Second,
they submit that the Deputy Head was in breach of the procedural fairness
requirements in that he never asked nor received submissions prior to making
his determination that the recommendation of the Classification Grievance Committee
was not to be followed.
[15]
The respondent argues that deference is the name
of the game. The Deputy Head disagreed with the assessment made by the
Committee. As put by the respondent, some of the factual findings made by the
Committee actually support a degree 5, as opposed to its conclusion that a
degree 6 is more appropriate. Furthermore, the respondent suggests that the
reference to the intention behind the job description should be read in
connection with the organizational context, such that there was nothing new
being considered by the Deputy Head that would have required seeking the views
of the applicants.
[16]
The parties are in agreement that the first
question calls for a standard of review of reasonableness whereas the second
ground calls for a standard of correctness. I share their view.
[17]
The Supreme Court of Canada’s jurisprudence
since Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir],
all the way to McLean v British Columbia (Securities Commission), 2013
SCC 67, [2013] 3 S.C.R. 895, favours a standard of reasonableness for decisions
made by the administration. The case law of this Court also supports that
deferential standard of review (Beauchemin v Canadian Food Inspection Agency,
2008 FC 186 [Beauchemin]; McEvoy v Attorney General, 2013 FC 685
[McEvoy]) when reviewing classification decisions. Conversely, breaches
of procedural fairness are to be reviewed on a correctness standard (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
IV.
Analysis
[18]
The starting point of the analysis must be
paragraph 47 of the Supreme Court of Canada’s decision in Dunsmuir which
described what the standard of reasonableness entails:
[47] Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[19]
Our search, therefore, centers on possible
outcomes and the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. With great respect, I
have found myself unable to conclude that the reasons given satisfy the
criteria of “justification, transparency and
intelligibility within the decision-making process”.
A standard of review of reasonableness carries a measure of deference towards
the decision-maker. However, as the Court put it in Dunsmuir,“[i]t does not mean that courts are subservient to the
determinations of decision makers, or that courts must show blind reverence to
their interpretations, or that they may be content to pay lip service to the
concept of reasonableness review while in fact imposing their own view”.
[20]
Classification Grievance Committees are highly
specialized and their decisions will also be afforded a high degree of deference
(see Beauchemin and McEvoy, supra). In the case at hand, the Deputy Head chose to disagree with the
conclusion reached by the Committee. That is certainly his prerogative although
it is not often the case as acknowledged by the respondent. Hence it is
possible for the decision of the Deputy Head to fall within the range of
outcomes which are possible and acceptable because they are defensible in
respect of the facts and the law. However, one will expect that such departure
will be justified in order to meet the standard of reasonableness. This
decision under review did not reach the necessary standard.
[21]
The Classification Grievance Committee Report
[the Report], which runs for some 22 pages, examines rather carefully the
generic job description. The Committee concludes that one factor, Decision
Making, needs to be adjusted to a higher level. In conducting its examination,
the Committee compares the work descriptions to three different degrees. Degree
5 is the degree at which the FB-06 position was classified; it also considers
degrees 6 and 7 and concludes ultimately that the position should receive a
degree 6, not a degree 7. Thus, the Report does not limit itself to a
comparison between degrees 5 and 6, but rather compares degree 7 to the subject
positions in order to reach a conclusion that the position does not have that
degree of difficulty.
[22]
In order to conduct that exercise, the Committee
received the submissions of the grievers together with the observations made by
management. Furthermore, managers in three regions were interviewed. It is
against that backdrop that the Committee considered examples of work activities
and reached its conclusion.
[23]
It is not easy to understand how the Deputy Head
reached the conclusion that he should depart from the findings of the
Committee. As indicated earlier, the decision covers two paragraphs and is
supported by a memorandum from the Vice President, Human Resources.
[24]
There seems to have been some confusion with the
terminology. Before reaching the two paragraphs of the decision letter which
purport to justify the conclusion that the Deputy Head has to agree with degree
5, instead of degree 6 as found by the Committee, the letter states that
The Border Services (FB) classification
standard clearly indicates that positions evaluated at degree 6 for Decision
Making “provide broad perspective, substantive recommendations on the
development of multi-disciplinary programs and polices” and that these
decisions directly affect how national policies and guidelines will be developed
and implemented.
[25]
Actually, the letter is not quoting from the Classification
Standard. It is quoting from paragraph 6.6.3 of the Application Guidelines (the
Court notes that the parties provided two slightly different texts of the
Application Guidelines, August 2005; for the purposes of these reasons, nothing
rides on the discrepancies). Furthermore, the quoted words are coming from
paragraph 6.6.3, under Degree 6, of examples of work activities, while the
clause “and that these decisions directly affect how
national polices and guidelines will be developed and implemented” is
borrowed from paragraph 6.6.2. which reads:
6.6.2 Provides substantive recommendations
to CBSA management and external stakeholders concerning the development or
modifications to legislation, regulations and policies. These decisions
directly affect how national policies and guidelines will be developed and
implemented.
It is less than clear what message was being
conveyed by collapsing awkwardly examples of work activities and stating,
mistakenly, that the Classification Standard indicates clearly that positions
evaluated at degree 6 must satisfy what would appear to be presented as a
standard, when in fact these are merely examples of work activities. It seems
to suggest that the examples of work activities have become essential
requirements. That puts the cart before the horses. The examples of work
activities serve to illuminate features that would be associated with a
standard at a particular degree. The paragraph seems to flip the proposition on
its head by suggesting that degree 6 for Decision Making requires that these
examples of work activities be present. Indeed, this begs the question: what
about the other examples of work activities listed for degree 6? It is unclear
how examples of work activities can be elevated to standards against which
positions are evaluated at degree 6 for Decision Making. Would have been much
more appropriate a reference to the specific guidelines corresponding to degree
6:
At degree 6, decisions involve more complexity
given the integrated nature of operations, i.e. more constraints, more
variables, more sets of program objectives that may not be aligned. Decisions
are based on significant managerial or subject matter expertise. Decisions impact
how to implement programs in this more complex environment.
Suffice it to say that the decision letter
does not state how the examples of work activities associated with degree 6
would be such that “the President cannot support the
Committee’s conclusion that there is a correlation between the work performed
and degree 6 of the Decision Making factor”, without a comparison of the
work content of the job, something that was done by the Committee but not by
the Deputy Head. Thus the paragraph is more declaratory than an articulation of
reasons for parting company with the Committee.
[26]
That takes us to the two paragraphs already
reproduced and which purport to be the articulation of the decision to refuse
to follow the recommendation. The Deputy Head seems to take issue in the first
of the two paragraphs with two sentences extracted from the Committee Report
when analyzing degrees 5, 6 and 7. There is no context provided; just two
extracts are taken from the Report. The first of the two sentences comes from
page 15 of the Report. Read in context, the sentence carries the conclusion
that the work done by the applicants does not reach a degree 7. No more.
[27]
This conclusion is drawn after the Committee
compared the “subject positions” to degree 7 and example of work activities
6.7.1 taken from the Application Guidelines. Hence the Report simply makes the
point that the analysis does not allow a jump from degree 5 to degree 7. It
does not state that degree 6 has not been met.
[28]
That first sentence is connected to the second
sentence by the word “rather”, suggesting “on the
contrary”, “instead” or perhaps “more precisely” (The Canadian Oxford Dictionary,
2001, sub verbo, “rather”). Whatever the meaning one wanted to convey by connecting
the two sentences with the word “rather”, the intent must have been at least to
show that the second sentence is the more precise, the more accurate. At its worst,
the use of the word suggests an opposition, certainly much more than a simple contradiction.
[29]
This second extract actually is found earlier in
the same paragraph in the Report, at page 14. Again, when read in context, the
authors of the Report state that the positions under review are evaluated at
degree 6 for Decision Making because “the subject
positions must make decisions on the approaches to program delivery in relation
to various projects and/or programs and that decisions are based on significant
subject matter expertise”. In other words, the complexity level is
higher and decisions require subject matter expertise. This second extract
quoted from the Report is not in opposition to, or contradicting, anything. In
fact, it does not constitute a more precise expression of the idea found in the
first extract. They are in fact separate and apart. It is worth quoting in extenso the passage where the Committee
concludes that degree 6 is the one that is appropriate:
The Committee concurred with the proposal of
the grievors that the subject positions should be evaluated at degree 6 for
Decision Making given that the subject positions must make decisions on the
approaches to program delivery in relation to various projects and/or programs
and that decisions are based on significant subject matter expertise. This
is further supported by comparison to Example of Work Activities 6.6.6. of the Application
Guidelines which, like the subject positions, determines the strategic program
delivery direction and priorities within an Agency area, establishes business
directions of the area, and makes recommendations on the operational and fiscal
impacts of proposals affecting service delivery and program effectiveness… [I
have underlined the passage quoted in the decision letter.]
[30]
Read as a whole, that paragraph in the Report
conveys that an evaluation at degree 6 is appropriate because, by comparison, the
decision-making aspects of the position are less than a degree 7 and fit the
specific guidelines and examples of work activities associated with degree 6.
Once one realizes that extract one presented in the decision in fact relates to
degree 7, and that extract two relates to degree 6, it is very difficult to
understand how these extracts might support the decision taken by the Deputy
Head. There is no opposition between these two extracts. They drive to the same
conclusion, that is that degree 6 is appropriate to this job description and
content. But they do so from two different angles. First, the Committee
establishes that degree 6 is appropriate and finds support in example of
activities 6.6.6 associated with degree 6. The Committee then goes on to find
that the job never reaches a degree 7.
[31]
The paragraph of the decision does not even
attempt to explain how the two extracts, taken out of context, help to establish
how degree 5 is more appropriate. At its highest, it is true that “the subject positions are not required to make decisions which
require in-depth consideration of the relationships between programs or
national priorities…” That is because this is associated with degree 7.
If the Deputy Head signals in the second sentence that the quoted words are a
more appropriate expression of the standard, he would appear to agree that a
degree 6 is appropriate because that is what the report concludes with those
very words.
[32]
By juxtaposing the two sentences in reverse
order, and connecting the two with the adverb “rather”, the decision letter seems
to mistakenly assume that the Committee declined to reach a conclusion that
degree 6 is appropriate and that, rather, the Committee recognized that degree
5 ought to be granted. This is at least one reading, one argued by the
applicants. This reading of the decision could be confirmed by this paragraph
taken from the memorandum in support of the decision:
The Grievance Committee, however, states in its
report that “…the subject positions are not required to make decisions which
require in-depth consideration of the relationships between programs or
national priorities; these considerations would be addressed at more senior
levels of management”. This statement is essentially in contradiction of the
definition of Degree 6 for Decision Making and recognizes the fact that, within
the agency, this responsibility rests with more senior management.
The trouble with this is that the Committee
was not referring to degree 6, as the writer seems to wrongly assume, but
rather the Committee was referring to degree 7. The only thing the Committee
was acknowledging is that the subject positions are not at a degree 7. As seen
when reading the extract in context, the Committee was not comparing the job
work to degree 6, but rather to degree 7. And it concluded that these kinds of
responsibilities are for more senior levels of management: degree 7. What was
in play was example of work activities 6.7.1. In its briefing note, the CBSA
seems to equate the example of work activities 6.7.1 with degree 6. It would
appear that degrees 6 and 7 are unfortunately conflated.
[33]
The respondent has not offered his own
interpretation of that paragraph of the decision letter. The only other reading
of that paragraph is that it does not lead to a conclusion that degree 5 is
more appropriate. In a sense, it is in the nature of a non
sequitur. If the first extract relates to degree 7
and extract 2 is concerned with degree 6, what does that say about degree 5?
There is no explanation for why degree 5 should be preferred on the basis of
two extracts that are concerned with degrees 6 and 7.Either way, this cannot
meet the standard of reasonableness where justification, transparency and
intelligibility are key.
[34]
Furthermore, the Deputy Head finds fault with
the Committee for not having considered “organizational context” in making its
recommendation. Other than being a term the contours of which are rather
uncertain, I fail to see how it can be asserted that it was not considered. The
Committee obviously took pains to receive from management its point of view.
Not only was the manager identified by CBSA as the right person to supply
further information interviewed, but when the person indicated that she had not
been in the position for very long the Committee interviewed two more managers.
Indeed in one case, that manager was interviewed twice.
[35]
From these interviews and the material supplied,
the Committee commented “that the organization structures
in which the subject positions are located vary significantly from region to
region and that, in some regions, the subject positions manage two or more
programs simultaneously while in other regions they only manage one program”
(page 12 of the Report). That would help explain the further comment “that the subject positions exist in different organizational
contexts from region to region” (page 13 of the Report). Clearly, in my
view, the Committee considered what it took to be the organizational context.
[36]
A better way to express the concern of the
Deputy Head might have been to declare that he disagreed with the consideration
given to “organizational context”. However, if that were the case, it would
have been incumbent on the Deputy Head to explain his view in order to make the
decision reasonable as justified, transparent and intelligible.
[37]
But the Committee was confronted to a generic
job description, approved in November 2010 by the employer after a grievance
about job content. It is on that basis that the grievance was heard. The fact
that job descriptions could have differentiated between positions does not
change the reality with which the Committee had to contend: there was one job
description to evaluate.
[38]
These extracts cannot support a reasonable
finding that degree 5 is more appropriate. In that sense, the only conclusion
that can be drawn is that the decision was made in a capricious manner. Gleason
J, of this court, reviewed some authorities on the notion of “capriciousness” and
one can read at paragraph 37 of Rahal v Canada (Citizenship and Immigration),
2012 FC 319:
[37] The notion of “capriciousness” is
somewhat less exacting. In Khakh v Canada (Minister of Citizenship and
Immigration) (1996), 116 FTR 310, [1996] FCJ No 980 at para 6, Justice
Campbell defined capricious, with reference to a dictionary definition, as
meaning “marked or guided by caprice; given to changes of interest or attitude
according to whim or fancies; not guided by steady judgment, intent or
purpose”. To somewhat similar effect, Justice Harrington in Matondo v Canada (Minister of Citizenship and Immigration), 2005 FC 416 at para 1, [2005] FCJ No
509, defined “capricious” as being “so irregular as to appear to be ungoverned
by law”. Many decisions hold that inferences based on conjecture are
capricious. In Canada (Minister of Employment and Immigration) v
Satiacum (1989), 99 NR 171, [1989] FCJ No 505 (FCA) at para 33, Justice
MacGuigan, writing for the Court, stated as follows regarding conjecture:
The common law has long recognized the
difference between reasonable inference and pure conjecture. Lord Macmillan put
the distinction this way in Jones v. Great Western Railway Co. [citation
omitted]:
The dividing
line between conjecture and inference is often a very difficult one to draw. A
conjecture may be plausible but it is of no legal value, for its essence is
that it is a mere guess. An inference in the legal sense, on the other hand, is
a deduction from the evidence, and if it is a reasonable deduction it may have
the validity of legal proof. …
In the case at hand, the absence of
justification makes the decision capricious and invites the intervention of
this Court (para 18.1(4)(d), Federal Courts Act).
[39]
The judicial review is not a contest between the
Deputy Head and the Committee. The Committee is merely making a recommendation
and the Deputy Head may disagree. As stated earlier, it is the Deputy Head’s
prerogative to disagree. The memorandum in support of the decision suggests
that rejecting a recommendation has been seldom seen. It remains that it is the
Deputy Head who decides and he may disagree.
[40]
However, in so doing, the Deputy Head cannot act
arbitrarily and his decision must be reasonable, as the notion is described at
paragraph 47 of Dunsmuir, supra. Given the expertise generally
shown by Classification Grievance Committees, that may not be an easy task. In
this case, as I have tried to demonstrate, the decision fails the test of the “existence of justification, transparency and intelligibility
within the decision-making process”. It also fails because the Court is
left without an understanding of how the decision made can fall within the
range of possible and acceptable outcomes. The decision tries to rely on
passages taken from the Committee Report, but it seems to misapprehend the
sentences used.
[41]
I do not dispute that perfection in the decision
made and the reasons given is not required. Similarly, not every argument must
be addressed. There may very well be more than one possible, acceptable outcome
which would be defensible in respect of the facts and the law. The Court is
very much alert to the admonition of the Supreme Court in Dunsmuir that
reviewing courts should not “be content to pay lip
service to the concept of reasonableness review while in fact imposing their
own view.” (para 48) But, at least, the reviewing judge has to understand
the basis on which the decision was made in order to conclude whether or not it
falls within the range of acceptable outcomes (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 [Newfoundland and Labrador Nurses’ Union]). This
decision letter under review and its supporting memorandum are unfortunately
cruelly lacking an articulation that could satisfy that minimal standard.
[42]
I should add that the Court was also concerned
about the general reliance by the Deputy Head on the “intention
behind the Manager, Regional Programs position”. How important a
consideration the intention behind the position has been is left hanging.
Surely, the position is what it is, and no more. If the content of the position
brings with it a high degree in the Decision Making factor, it is a bit late to
assert that such was not management’s intention.
[43]
The new assertion in the decision that the
Committee lacked in its appreciation of the intention behind the position does
not either satisfy the reasonableness standard. Indeed, it is less than clear
at this stage how that can be a relevant consideration. Be that as it may, it
is not necessary to expand on the possibility that it may have been an
irrelevant consideration in view of the conclusion that the mention of “the intention behind the position” is not articulated
as a concern, making it impossible for the “reviewing
court to understand why the tribunal made its decision and permit it to
determine whether the conclusion is within the range of acceptable outcomes…”
(Newfoundland and Labrador Nurses’ Union, para 16).
V.
Conclusion
[44]
In a case like this one, the reasons given to
depart from a well-articulated recommendation must be intelligible, in the
sense that they “are able to be understood” (The
Canadian Oxford Dictionary, 2001, sub verbo, “intelligible”). With great respect, the
decision does not have that measure of intelligibility. It seems to contemplate
statements made with respect to degrees 7 and 6 as if they related to degrees 6
and 5. If that is not what the decision actually meant, the respondent has been
incapable of enlightening the Court either by providing an alternate meaning.
The respondent also seems to rely on “the intention
behind … the position” in order to take the analysis outside of the job
description that is at the heart of the grievance adjudication. Finally it
faults the Committee for not having considered the organizational context,
where it would appear that the Committee considered that context. If the Deputy
Head disagreed with the findings on that account, he did not express where his
disagreement lies. At the end of the day, this reviewing court is left without
understanding “why the tribunal made its decision”
(Newfoundland and Labrador Nurses’ Union, supra, para 16).
[45]
My conclusion on the reasonableness of the
decision suffices to dispose of the matter. The application for judicial review
is granted, with costs.
[46]
As a result, it will not be necessary to address
the alternate argument of the applicants about an alleged breach of procedural
fairness. I would nevertheless offer the observation that, as this matter is
sent back for redetermination, and given the expertise of the Committee and what
appears to have been a misapprehension of the rationale for the recommendation
of the Committee, it might well be advisable to receive the comments and the
observations of the applicants for the purpose of having the most complete and
accurate picture. I have in mind in particular the use that was made by the
Deputy Head of the “intention behind the Manager,
Regional Programs position”, assuming of course that it is relevant to a
classification decision. Similarly, as I have indicated, the organizational
context was considered by the Committee, yet the Deputy Head either disagreed
with its findings or meant something else where he indicated that the Committee
failed to do what “is required by the application guidelines
for classification standards”. A clear record would be advisable.
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