Docket: T-1775-14
Citation:
2015 FC 645
Ottawa, Ontario, May 19, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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ISMAIL GULTEPE
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Applicant
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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
I.
Background
[1]
The applicant, Ismail Gultepe, seeks judicial
review of a decision of the Deputy Minister of Environment Canada to accept the
recommendation of an Independent Review Panel which concluded that a decision
of the Career Progression Committee (CPC) refusing the applicant’s request for
promotion should be upheld.
[2]
For the reasons provided below, I have concluded
that this application should be granted.
II.
Facts
[3]
The applicant is a researcher with Environment
Canada. Promotions for such researchers are determined using an incumbent-based
process which is defined in a document entitled “Career
Progression Management Framework for Federal Researchers” (the
Framework). This incumbent-based process is different from the process used to
grant promotions of other members of the Federal civil service. Pursuant to the
Framework, requests for promotion are considered by peers in accordance with
detailed criteria defined therein.
[4]
In the present case, the applicant’s request for
promotion was initially considered by the Atmospheric Science and Technology
Directorate Committee which decided not to recommend promotion. At the
applicant’s request, the CPC then considered the applicant’s request for
promotion. As indicated above, the CPC denied the promotion.
[5]
To address cases in which a request for
promotion has been denied, a researcher may make a complaint using an
Independent Recourse Mechanism (IRM) which is defined in Annex B of the
Framework. Under the IRM, a reviewer or a review panel is appointed. In this
case, a review panel of three members (the Review Panel) was appointed.
[6]
Pursuant to section 3.4 of the IRM:
The reviewer/panel shall not replicate the
role of the CPC. The reviewer’s/panel’s purpose is to review the recourse case,
with regard to the process used by the CPC to assess the candidate’s readiness
for promotion and the alleged ground(s) of the complaint.
[7]
Grounds for recourse under the IRM are defined
in section 2.2. Among these is “abuse of authority”.
Abuse of authority encompasses several things, including cases in which “there is an improper result (including unreasonable,
discriminatory or retroactive administrative actions)”. Section 2.2 goes
on to state as follows:
Abuse of authority is more than simply
errors or omissions; however, when a delegate acts on inadequate material and/or
takes action which are [sic], for example, unreasonable or discriminatory,
these actions may constitute such serious errors and/or important omissions to
amount to abuse of authority even if unintentional.
[8]
Section 3.5 of the IRM provides as follows:
Within seventy-five (75) calendar days from
their appointment, the Reviewer(s) will either confirm to the Deputy Head [the
Deputy Minister] or their delegate the appropriateness of the process used by
the original career progression committee, or, identify the issue(s) that may
have negatively affected the decision of the career progression committee. The
Reviewer(s) may then recommend to the Deputy Head that a new career progression
committee (with a majority of the members not having been members of the original
committee) re-examine the case. The Reviewer(s) may not recommend that career
progression be granted.
[9]
In the present case, the applicant made a
request for recourse under the IRM and supported it with a memo detailing three
grounds, including a complaint that there was an abuse of authority by the CPC.
III.
Impugned Decision
[10]
The impugned decision was made by the Deputy
Minister. However, that decision was based on the findings and recommendations
of the Review Panel which were accepted by the Deputy Minister. Accordingly,
the reasons provided by the Review Panel are relevant to this judicial review.
[11]
Many aspects of the Review Panel’s reasons, and
the process by which it reached its conclusions, were challenged by the
applicant. For the purposes of the present judicial review, I need not address
all of these. It is sufficient to address the Review Panel’s statements
concerning the scope of its mandate.
[12]
In several places in its reasons, the Review
Panel stated that its mandate was limited to issues of process, and did not
permit consideration of substantive aspects of the CPC’s analysis. It is
difficult to criticize the way the Review Panel initially described its
mandate:
Our role as Independent Review Panel has
been, variously, to assess the appropriateness of the process used by the
[CPC], to identify issue(s) that may have affected negatively the decision of
the [CPC] and, after forming consensus, make written recommendations to you,
the Deputy Minister. Of note, our role has not been to conduct an independent
review of Dr. Gultepe’s promotion material and assess what SE-RES level he
merits.
[13]
However, subsequent statements by the Review
Panel concerning limits on the scope of its mandate are broader. In two
separate places in its reasons, the Review Panel stated that it was “expressly charged to review only process”. The Review
Panel also stated that “the determinations of the CPC
reside outside our mandate as a Panel assessing the fairness of the process
used by the CPC.” On all these occasions, these statements were relied
upon as a reason not to review the CPC’s assessment of documents and
representations that were before it in the context of the applicant’s request
for promotion.
IV.
Analysis
[14]
The mandate of the Review Panel is defined by
the IRM. Though it is true that its mandate does not extend to replicating the
role of the CPC (3.4), the Review Panel is tasked with considering whether the
CPC’s analysis has given rise to an improper result (2.2). The Review Panel is
expressly required to identify any issues that may have negatively affected the
CPC’s decision (3.5).
[15]
In my view, the Review Panel fell into error
when it declined to consider some of the applicant’s arguments on the basis
that it is “expressly charged to review only process”.
Though the parties disagree as to the standard of review of the Review Panel’s
determination of the scope of its mandate, I need not decide the point because,
in my view, the Review Panel’s conclusion on the limits of its mandate was both
incorrect and unreasonable. Several aspects of the IRM indicate that the Review
Panel must consider substantive aspects of the CPC’s analysis. One of these
arises where the Review Panel must decide whether an aspect of that analysis
has been unreasonable, resulting in an improper result, thus constituting abuse
of authority.
[16]
I am particularly troubled by the Review Panel’s
erroneous characterization of the scope of its mandate in light of two
communications on that very issue made to it by Geneviève Charlebois, the
department resource process coordinator. Ms. Charlebois is an employee of
Environment Canada, but is tasked to provide resource assistance for the Review
Panel. In the first of Ms. Charlebois’ communications, she advised the Review
Panel to “keep in mind that the panel’s mandate is to
look at process and not content”. In the second of the communications,
four days later, Ms. Charlebois stated as follows:
I would like to take this opportunity to
remind you of the panel’s mandate [which] is to ensure that the CPC procedures
were fair, transparent and accessible for the complainant. How the dossier was
put together, and who participated to the creation of the dossier, is outside
your mandate.
[17]
Neither of Ms. Charlebois’ communications was
shared with the applicant until after the impugned decision had been made.
[18]
In my view, both of these statements incorrectly
understate the true breadth of the Review Panel’s mandate. It is also arguable
that the Review Panel adopted these statements when it stated that that it is “expressly charged to review only process”.
[19]
The applicant argues that Ms. Charlebois’
communications constituted advocacy and interfered with the independence of the
Review Panel. I need not decide that issue. However, I would expect that a resource
person in Ms. Charlebois’ position should restrict their comments, including
those concerning the scope of the tribunal’s mandate, to issues that are not
controversial. Clearly, that is not the case here. I would also expect that, in
the event that such a resource person does make comments on
controversial issues and without the applicant’s knowledge, then the respondent
would not expect such statements, when adopted by the tribunal, to be given
deference.
V.
Conclusion
[20]
The present application should be granted and
the decision of the Deputy Minister set aside.
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