Docket: T-1185-15
Citation:
2016 FC 1368
[ENGLISH TRANSLATION]
Ottawa, Ontario, December 13, 2016
PRESENT:
The Honourable Madam Justice Roussel
|
BETWEEN:
|
|
CHARLOTTE
RHÉAUME
|
|
Applicant
|
|
and
|
|
CANADA REVENUE
AGENCY
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review by the
applicant, Charlotte Rhéaume, of a decision dated May 29, 2015, rendered at the
final level of the grievance process by Diane Lorenzato, the assistant commissioner
of the Human Resources Branch at the Canada Revenue Agency [CRA]. In that
decision, the assistant commissioner denied Ms. Rhéaume’s two grievances,
contesting the removal of her name from two inventories on grounds of unsatisfactory
performance.
[2]
The application for judicial review is dismissed
for the following reasons.
I.
Background
[3]
Ms. Rhéaume has been employed by the CRA since
1987. In December 2011, following a notice of interest issued within the CRA, Ms.
Rhéaume, who held a position at the SP-05 level at the time, agreed to a
lateral transfer to an interim SP-06 position as an access to information and
privacy [ATIP] advisor for the period from October 17, 2011, to March 29, 2013.
[4]
In the course of her employment as an acting
SP-06, Ms. Rhéaume applied for a permanent SP-06 advisor position in selection
process 2012-0636-QUE-1714-0636, which was posted on January 27, 2012. On April
5, 2012, she was told that she had achieved a passing score for each of the
qualifications assessed. Her name was then retained in the inventory for a
permanent SP‑06 position.
[5]
In October 2012, Ms. Rhéaume applied for an
interim senior ATIP advisor position at the SP-07 level. She qualified and was
ranked fourth with another candidate. Her name was added to the inventory for a
position at the SP-07 level. On November 16, 2012, Ms. Rhéaume was informed of her
score via e-mail. She was ranked seventh in the process at that time.
[6]
On November 19, 2012, the Director of the ATIP Directorate,
Marie-Claude Juneau, told Ms. Rhéaume via two letters that her name would be
removed from the SP-06 and SP-07 inventories for performance reasons. Deficiencies
in Ms. Rhéaume’s work had been noted by the assistant director at an initial
meeting on June 29, 2012, and at a second meeting on November 13, 2012. At
the second meeting, she was told that she was not meeting the expectations of
the position and that her acting appointment in the SP-06 position was
terminated. Ms. Rhéaume returned to her position at the SP-05 level.
[7]
In those same letters dated November 19, 2012, Ms.
Juneau also told Ms. Rhéaume that there was a possibility that her name
would be placed back in the inventories after receipt of confirmation by her
immediate supervisor that her performance had improved and that she was meeting
expectations in her current position. It was also indicated that it was her
responsibility to provide that confirmation to the resourcing advisor, and that
her name could not be placed back in the inventory if the inventory had expired.
Lastly, Ms. Juneau informed Ms. Rhéaume that the action of verifying
performance was not subject to recourse in that selection process and that if
she had concerns about her performance, she should approach her immediate
supervisor about it.
[8]
In November and December 2012, Ms. Rhéaume filed
five grievances:
A.
Grievance 12-1208-70099811, contesting the CRA’s
decision to prematurely end her appointment as an advisor at the SP-06 level;
B. Grievance 12-1208-70100478, contesting the CRA’s decision to remove
her name from the SP-07 inventory;
C. Grievance 12-1208-70100479, contesting the CRA’s decision to remove
her name from the SP-06 inventory;
D. Grievance 12-1208-70100480, criticizing the assistant director of being
threatening and demeaning to her at the meeting on November 13, 2012; and
E. Grievance 12-1208-70100481, contesting the evaluation of her
performance for the period from September 1, 2011, to August 31, 2012, that was
given to her on November 13, 2012.
[9]
On December 5, 2013, while the decision at the second
grievance level was still pending, Ms. Rhéaume’s union representative informed
Ms. Juneau that Ms. Rhéaume’s new evaluation for the period from September 1,
2012, to August 31, 2013, demonstrated that she was meeting the expectations of
her position and that she wanted to be placed back in the SP-06 and SP-07 inventories.
In a response dated December 12, 2013, Ms. Juneau indicated that according to
the guidelines on performance verification in a selection process, it was up to
Ms. Rhéaume to make a reinstatement request to the resourcing advisor. Her
union representative then sent the request to human resources.
[10]
On September 16, 2014, Ms. Rhéaume made a request
to be placed back in the inventories.
[11]
Because the five grievances were denied at the first,
second and third levels of the grievance process, they were referred to the
assistant commissioner of the CRA, Ms. Lorenzato, for the fourth and final
level of the grievance process. The CRA’s Senior Labour Relations Advisor,
Stephen Black, reviewed the five grievances and heard the requests, comments
and observations of Ms. Rhéaume’s union representative at a hearing on May
7, 2015. Following that meeting, Mr. Black prepared a final level
grievance summary for the assistant commissioner.
[12]
In a letter dated May 29, 2015, Ms. Lorenzato denied
Ms. Rhéaume’s grievances contesting the removal of her name from the SP-06
and SP-07 inventories. She noted the corrective action sought by Ms. Rhéaume and
stated that she had considered the entire file as well as the presentation made
by Ms. Rhéaume’s union representative. She stated that the guidelines on
performance verification in a selection process stipulate that if a qualified candidate
in an inventory subsequently receives [translation]
“expectations are not being met” on a
performance evaluation in his or her current position, he or she will be
removed from the inventory. The results of Ms. Rhéaume’s performance evaluation
indicate that she was not meeting the expectations and therefore her name was
removed from the inventories. Lastly, Ms. Lorenzato stated that she was
satisfied that the action taken by management was appropriate. She therefore
denied the two grievances and refused to allow the corrective action sought.
II.
Issues
[13]
The applicant raises a number of issues that, in
my opinion, can be summarized as follows:
A.
Does the assistant commissioner’s decision dated
May 29, 2015, violate the applicable guarantees of procedural fairness?
B.
In the event that the decision respects the
applicable guarantees of procedural fairness, is the decision reasonable?
[14]
At the hearing of the application, the Court
invoked of its own motion the preliminary issue of the mootness of the
application for judicial review and invited the parties to make additional
written submissions on this issue. The two parties availed themselves of the
opportunity. I will therefore examine this issue first.
III.
Analysis
A.
Is the application for judicial review moot?
[15]
The legal principles governing the application
of the doctrine of mootness were stated by the Supreme Court of Canada in Borowski
v Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski]. A court
may decline to decide a case which raises merely a hypothetical or abstract
question, or when the decision of the court will not have the effect of
resolving some controversy which affects or may affect the rights of the
parties. This essential ingredient must be present not only when the proceeding
is commenced before the Court, but also at the time when the court is called
upon to reach a decision (Borowski at p 353).
[16]
The approach to follow involves a two-step
analysis. The Court must first determine whether there remains a live
controversy or “whether the required tangible and
concrete dispute has disappeared”. If the response to the second
question is affirmative, the Court will decide if it should exercise its
discretion and hear the case (Borowski at pp 353-354). In this regard,
the Court will consider the existence of an adversarial context, the
conservation of judicial resources and its proper law-making function (Borowski
at pp 359-363).
[17]
In this case, Ms. Rhéaume filed five grievances.
Only two were addressed in the decision dated May 29, 2015, which is the
subject of this application for judicial review, that is, those bearing
reference numbers 12-1208-70100478 and 12-1208-70100479. This Court has not
been called upon to rule on Ms. Rhéaume’s three other grievances, including the
grievance contesting the performance evaluation that caused her name to be
removed from the two inventories in question and the grievance contesting the
decision to prematurely end her lateral transfer to the acting SP-06 position. While
Mr. Black’s final level grievance summary recommends that the five
grievances be denied, the decisions on the other grievances were not filed in
the Court record and are not the subject of an application for judicial review.
[18]
Ms. Rhéaume clearly stated in the statement for
the two grievances that are subject of the application for judicial review that
she contests the decisions of the ATIP director to remove her name from the SP-06
and SP-07 inventories and that she is asking, as corrective action, that the
decisions be set aside and that her name remain in the inventories for notice
of interest SP-07 and selection process 2012-0636-QUE-1714-0636 for the SP-06 advisor
position.
[19]
While the parties do not agree on the exact expiry
date of the two inventories, they agree that the SP-06 and SP-07 inventories
are now expired.
[20]
Even if this Court set aside the decision and
returned Ms. Rhéaume’s file to the assistant commissioner, Ms. Rhéaume could no
longer potentially be given a placement through those inventories because they
no longer exist. Therefore, the decision of this Court would have practically
no meaningful effect on Ms. Rhéaume’s rights concerning those two expired inventories.
[21]
I thus find that this application for judicial
review is moot because the two inventories in question have expired (Plato v
Canada (National Revenue), 2014 FC 1230 at para 20, aff’d 2015 FCA 217; Elkayam
v Canada (Attorney General), 2004 FC 908 at paras 10 and 15, aff’d 2005 FCA
102; Weerasooriya-Epps v Canada (Attorney General), 2004 FC 688 at para
16; Cahill v Canada (Attorney General), 2002 FCT 773 at p 5).
B.
Should the Court exercise its discretion to decide
the matter?
[22]
Applying the criteria developed by the Supreme
Court of Canada in Borowski to the facts in this case, I am of the
opinion, for the following reasons, that there is no need for me to exercise my
discretion to address the issues raised by Ms. Rhéaume.
[23]
Ms. Rhéaume submits that she has a direct
interest in the outcome of the dispute and that the Court’s decision will
directly affect her rights. She states that the dispute will impact her current
permanent position, her salary and the calculation of her pay for her upcoming
retirement and her current career. She argues that the fact that the pools
expired does not mean that her rights were not impacted.
[24]
She claims that the positions still exist and
that all of the qualified candidates in the inventories received offers of
employment, either permanent or temporary. She adds that the employer even posted
at least one new notice of interest for an SP-06 position in June 2014. She is
of the opinion that she would have undoubtedly been offered such position had
her name not been removed from the inventory. Ms. Rhéaume also presumes that
she would have been appointed to an acting SP-07 position because there were
only two candidates left to be appointed from the SP-07 inventory.
[25]
I cannot agree with Ms. Rhéaume’s arguments. The
record before this Court does not show any evidence establishing that Ms.
Rhéaume would have been given a placement because she qualified for the two inventories
in question. Like the CRA explained in its written submissions, an inventory is
created to constitute a pool of qualified candidates for possible placement. It
does not guarantee a placement for qualified candidates.
[26]
Ms. Rhéaume stated in her additional written
submissions that her notice of application for judicial review seeks not only an
order from this Court that she be reinstated in the SP-06 and SP-07 inventories,
but also orders (1) that she be retroactively appointed to a permanent position
at the SP-06 group and level or an equivalent; (2) that she be paid the difference
in salary between the SP-05 group and level and the SP-06 and SP-07 groups and
levels with interest, retroactive to the filing of the grievances; and (3) that
the Court render any other remedies that it deems just.
[27]
In her oral submissions, Ms. Rhéaume recognized
that while the assistant commissioner committed a reviewable error with respect
to the two grievances that are the subject of the application for judicial
review, it would not be appropriate to remove someone else from the position to
give her a permanent position at the SP-06 group and level. She also recognized
that if a new notice of interest was posted for the creation of a new inventory,
her current performance evaluations would have to be examined.
[28]
Also, this Court has no jurisdiction in an
application for judicial review pursuant to section 18.1 of the Federal
Courts Act, RSC, 1985, c F-7, to order compensation for the salary
difference sought and alleged by Ms. Rhéaume. A simple request that the
Court render any other remedies that it deems just does not allow this Court to
control the legality of decisions rendered with respect to other grievances that
were not the subject of an application for judicial review.
[29]
Regarding the factor of conserving judicial
resources, Ms. Rhéaume first states that the application for judicial review
was heard and thus the concern for economy is no longer present. However, the
Supreme Court of Canada stated in Borowski that it is not because the
Court heard the merits of a case that it must necessarily use its discretion to
rule on the issues raised (Borowski at pp 363-364).
[30]
Ms. Rhéaume also claims that the CRA cannot benefit
from its own wrongdoing. Specifically, she advances that the CRA breached its
obligations under the collective agreement by failing to respect the grievance
procedure deadlines. She stated that the CRA took almost two and a half years
for the three levels of response to the grievances.
[31]
In this regard, without ruling on the justification
for the delays in processing the grievances, I agree with the CRA’s argument
that Ms. Rhéaume could have availed herself of clause 18.13 of her collective
agreement, which states that where the employer has not conveyed a decision
within 15 days from the date that a grievance is presented at any level, except
the final level, the employee may, within the next ten days, submit the
grievance at the next higher level of the grievance procedure. The Court also
notes that clause 18.08 of that same agreement states that whenever there are
four levels in the grievance procedure, the grievor may elect to waive either
level two or three.
[32]
Ms. Rhéaume also alleges that the CRA did not
raise the mootness of the case and that the responses to grievances did not mention
expired inventories.
[33]
However, it has been clearly established that
the Court can raise the issue of mootness (Canada (National Revenue) v
Mcnally, 2015 FCA 195 at para 10; Solis Perez v Canada (Citizenship and Immigration),
2008 FC 663 at para 18, aff’d 2009 FCA 171).
[34]
Regarding her argument that the CRA did not
mention that the grievances had expired in its responses to her grievances, the
Court notes that it is explicitly mentioned in the letters dated November 19,
2012, that Ms. Rhéaume’s name could not be placed back in the inventories if
those inventories had expired. The response at the second level of the
grievance process also stated that reinstatement was possible if the inventory
was still valid.
[35]
Lastly, regarding the third factor stated in Borowski,
I am of the view that this case raises no important matter of public interest
justifying this Court’s exercise of its discretion and determination of the
issues raised by Ms. Rhéaume in her application for judicial review.
[36]
In light of the foregoing, the application for
judicial review is dismissed for mootness.
[37]
Regarding costs, considering the circumstances
of the case and the outcome of the application, I am of the opinion, in the exercise
of my discretion, that it should be ordered that each party bear its own costs.
[38]
In conclusion, I note that the respondent in
this case is the federal board, commission or other tribunal directly affected
by the order sought, that is, the CRA. I confirm the validity of the style of
cause.
Email this Content