Docket: T-975-14
Citation:
2015 FC 696
Toronto, Ontario, June 1,
2015
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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RICHARD TUDOR
PRICE
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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
[1]
Richard Tudor Price (the “Applicant”) seeks
judicial review pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985 c. F-7 of the decision, by Assistant Deputy Minister Johanne
Belisle (“ADM Belisle”) of Agriculture and Agri-Food Canada (“AAFC”). In that
decision, dated February 24, 2012 ADM Belisle dismissed a grievance complaint
filed by the Applicant pursuant to section 208 of the Public Service Labour
Relations Act, S.C. 2003 c. 22 s. 2 (the “PSLRA”).
[2]
Pursuant to Rule 303(2) of the Federal Courts
Rules, SOR/98-106 (the “Rules”), the Attorney General of Canada is the Respondent (the “Respondent”) in this application for judicial review.
[3]
The Applicant previously applied for judicial
review in respect of a grievance complaint filed pursuant to section 209 of the
PSLRA. By Order dated March 31, 2014, Madam Justice Gleason dismissed the
application, without prejudice to the Applicant’s right to seek review of the
final grievance decision. Justice Gleason found that the Public Service Labour
Relations Board lacked jurisdiction to deal with the Applicant’s complaint
about breaches of procedural fairness, and that it had not erred in determining
that the grievance was not justiciable; see the decision in Richard Tudor
Price v. Treasury Board (Canada)(Agriculture and Agri-Food Canada) (March
31 2014), Ottawa T-1074-13 (F.C.) (unreported).
[4]
The following facts are taken from the Records
filed by the parties, specifically, the Applicant’s affidavit filed in support
of his application for judicial review, and the affidavits of Catherine
MacQuarrie, Consuelo Francolini and Lucia Kuhl, filed by the Respondents.
[5]
The Applicant is a former federal public servant.
He began working with AAFC in 1982, and was employed in executive positions
from 1986 to June 2011.
[6]
In 2009, the Applicant acted as a temporary team
leader for negotiations that the Strategic Policy Branch of AAFC was conducting
to improve performance in the areas of food safety, producer training and
environmentally sustainable agriculture. He was permanently assigned the role
of team leader in December 2009, and continued in this role throughout the
2010-2011 fiscal year.
[7]
In July 2010, the Applicant was advised that he
was receiving a performance rating of “succeeded- ” for 2009-2010.
[8]
Pursuant to the “Performance Management
Program for Executives – Reference Guide on the Application of the Policy
Directive at AAFC”, there are six possible performance ratings: “unable
to assess”, “did not meet”, “succeeded -”, “succeeded”, “succeeded +” and
“surpassed.” Among other things, performance ratings are used to determine the
amount payable to employees as performance awards. Performance awards are also
referred to as an employee’s “pay-at-risk.”
[9]
The Applicant complained about his performance
rating to Ms. Consuelo Francolini, Acting Director General for Executive Group
Services, Human Resources Branch. In his complaint, the Applicant alleged that
no performance goals had been set, nor were any concerns raised about the
team’s performance.
[10]
In October 2010, the Applicant transferred from
the Strategic Policy Branch to the Market and Industry Service Branch of AAFC.
[11]
On November 16, 2010 the Applicant met with Ms.
Catherine MacQuarrie, then Assistant Deputy Minister, Human Resources, to
discuss his complaint. According to the Applicant, Ms. MacQuarrie and the
Applicant agreed to the following terms: that his 2009-2010 performance rating
would be upgraded to “succeeded”; that if the Applicant received positive
performance reviews from his two supervisors, Ms. Heather Smith and Ms. Susie
Miller, for the 2010-2011 fiscal year, there would be no downgrading of his
performance review for that term; and, that the Applicant would resign from public
service by June 30, 2011.
[12]
In an email dated November 17, 2010 the
Applicant advised Ms. Smith that he had discussed a possible agreement that
would give him a degree of immunity from having his pay-at-risk withheld for
the 2010-2011 year.
[13]
The Applicant received positive performance ratings
from both supervisors. These reviews were sent to Ms. Francolini by email on
December 14, 2010. In her reply, Ms. Francolini outlined the procedure followed
in determining performance reviews and advised that his performance rating may
still change. In response, the Applicant sent her an email advising that he and
Ms. MacQuarrie had agreed to take certain steps in relation to his concerns
about his 2010-2011 performance review.
[14]
On August 2, 2011, the Applicant received a letter
advising him that his performance rating for the 2010-2011 fiscal year was
“succeeded -” and not the rating of “succeeded”, as he had expected. In
consequence, his performance award was $4760 less than if he had received a
rating of “succeeded”.
[15]
The Applicant wrote to Ms. MacQuarrie on August
3, 2011 about the alleged agreement that his performance rating would not be
less than “succeeded”. In reply, Ms. MacQuarrie stated that she did not recall
agreeing to a guaranteed rating of “succeeded”.
[16]
On August 5, 2011, the Applicant submitted a
formal grievance to Ms. Miller, requesting that his performance rating be
changed to “succeeded.”
[17]
On September 30, 2011 the Applicant attended an
informal meeting with Lucia Kuhl, Senior Labour Relations Advisor, and Steve
Tierney, Assistant Deputy Minister, MISB. At that meeting, he was advised he
had failed to inform the province of Saskatchewan that AAFC had rejected its
water proposals and had also failed to prepare an Agri-Flex Contribution
Agreement for Newfoundland. He was advised that these omissions negatively
affected his performance rating.
[18]
In response to these alleged failures, the
Applicant forwarded an email to Mr. Tierney which showed that a draft
Contribution Agreement had been sent to Newfoundland. He further advised Mr.
Tierney that at the time he left the branch, the Saskatchewan water proposal
was under review, and as such, there was no rejection to report to the
government of Saskatchewan.
[19]
On December 21, 2011 the Applicant attended a final
level grievance hearing. At the hearing, the documents before ADM Belisle
consisted of:
i.
a briefing note prepared by Ms. Kuhl, outlining
the allegations and positions of the parties;
ii.
the submissions and evidence of the Applicant;
the Treasury Board Secretariat “Directive on the Performance Management Program
(PMP) for Executives”;
iii.
the Applicant’s Pre-Retirement Special
Deployment Agreement; and,
iv.
a document entitled “Grievor Performance –
explanation.”
[20]
After the hearing, the Applicant submitted a
request pursuant to the Access to Information Act, R.S.C. 1985, c. A-1,
seeking disclosure of certain information. In response to this request, he
learned that the document “Grievor Performance – explanation” was before ADM
Belisle at the hearing. This document had not been previously disclosed to him.
He also became aware, for the first time, that additional inquiries were made
by the ADM after the grievance hearing.
I.
DECISION UNDER REVIEW
[21]
ADM Belisle issued her decision, dismissing the
grievance, on February 24, 2012. The decision identified the basis of the
grievance as receipt by the Applicant of a performance rating of “succeeded-” despite
an agreement with Ms. MacQuarrie that his performance rating would be at least
“succeeded”.
[22]
After consideration of the information relative
to the Applicant’s case, ADM Belisle concluded that there was no evidence to
support the claim that there was an agreement that the Applicant would receive
a performance rating of at least “succeeded”.
[23]
Finally, ADM Belisle found that the Applicant’s
performance was properly evaluated in accordance with the Treasury Board
Secretariat’s “Directive on the Performance Management Program (PMP) for
Executives”, and that there was no requirement that individual executives
provide input into the evaluation process. She also found that the ratings were
confidential and that there was no information shared that would damage the
Applicant’s reputation.
II.
ISSUES
[24]
The within application raises the following
issues:
1)
What is the applicable standard of review?
2)
Was there a breach of procedural fairness?
3)
Does the decision meet the standard of
reasonableness?
III.
SUBMISSIONS
A.
The Applicant’s Submissions
[25]
The Applicant argues that the decision-maker
committed a breach of procedural fairness by relying on material that was not
disclosed to him. In this regard, he refers to meetings with Ms. Miller and Ms.
Smith and the request that Mr. Greg Meredith review certain submissions filed
by the Applicant, to confirm their accuracy. The Applicant was not advised
about these investigations nor was he provided with the opportunity to respond
to or comment upon the information gathered.
[26]
The Applicant also submits that the
non-disclosure of the document “Grievor’s Performance -
Explanation”, that was before the ADM at the hearing, breached his right
to procedural fairness because he was not informed that there were additional
factors affecting his performance rating.
[27]
In brief, the Applicant argues that
non-disclosure of this additional material denied him of sufficient notice
about the case that he had to meet, relying on the decision in Slattery v.
Canada, [1994] 73 F.T.R. 161 at paragraph 68.
B.
The Respondent’s Submissions
[28]
The Respondent submits that the content of the
duty of fairness varies according to the circumstances in issue, relying on the
decision in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paragraphs 21 to 28.
[29]
While acknowledging that the Applicant is
entitled to some degree of procedural fairness, he argues that the content of
that duty is at the low end of the spectrum, as discussed in Hagel et al. v.
Canada (Attorney General), [2009] 352 F.T.R. 22 at paragraph 35.
[30]
The Respondent argues that the appropriateness
of a performance rating given to an employee is an administrative decision that
does not rise to the same level of importance as dismissal from employment. He
also submits that the Applicant received sufficient notice about the issues to
adequately prepare himself for the hearing.
IV.
DISCUSSION AND DISPOSITION
[31]
The first matter to be addressed is the applicable
standard of review. According to the decision in Canada (Citizenship
and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43, issues of
procedural fairness are reviewable on the standard of correctness. The merits
of the decision are reviewable on the standard of reasonableness; see the
decision in Spencer v. Canada (Attorney General), [2010] 360 F.T.R. 251.
[32]
In this case it is not necessary to address the
reasonableness of the decision since the Applicant made it clear at the hearing
that he was only pursuing the issue of procedural fairness.
[33]
In my opinion, the Applicant’s submissions about
a breach of procedural fairness are well-founded. It was improper for the
decision-maker to decide his grievance on the basis of documents and materials
that were not disclosed to the Applicant.
[34]
The purpose of the procedural fairness principle
is to allow an interested or affected person to know the case that he or she
has to meet. The duty of fairness requires that decision-makers disclose the
information they have relied on in reaching their conclusions so that parties
have the opportunity to address evidence that is prejudicial to their case; see
the decisions in May v. Ferndale Institution, [2005] 3 S.C.R. 809 at
paragraph 92 and Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3
at paragraph 40.
[35]
The Applicant was pursuing a legitimate process,
that is, his grievance concerning his performance rating. That performance
rating carried significant financial implications for the Applicant and cannot
be casually dismissed as a mere “administrative decision”, as suggested by the
Respondent.
[36]
The breach of procedural fairness in this case
was far beyond the situation discussed in Mobil Oil Canada Ltd. v.
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 at
pages 228-229, where the Supreme Court of Canada held that courts have
discretion to withhold a remedy where, for example, the merits of the case have
no chance of success.
[37]
The disclosure of the relevant information could
well have influenced the disposition of the Applicant’s grievance. The
non-disclosure amounts to a breach of his rights to procedural fairness and is
a reviewable error.
[38]
Accordingly, the decision of ADM Belisle is set
aside and the matter will be re-determined in accordance with these reasons.
[39]
The Applicant has requested costs.
[40]
While the Court enjoys full discretion in the
matter of awarding costs, pursuant to Rule 400 of the Rules, some limitations
apply in the award of costs to a self-represented party; see the decision in Professional
Institute of Public Service of Canada v. Bremsak, [2013] 449 N.R. 200. In
that decision, at paragraph 94, the Federal Court of Appeal held that “self-represented litigants may be entitled to some form of
compensation “particularly when that party is required to be present at a
hearing and foregoes income because of that (Thibodeau c. Air Canada, 2007
FCA 115 (F.C.A.) at paragraph 24””.
[41]
In the exercise of my discretion concerning costs,
I award the Applicant $500.00 in costs, inclusive of disbursements and HST.
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