Docket: T-243-15
Citation: 2015 FC 1089
Ottawa,
Ontario, September 17, 2015
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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SERGE BOURDEAU
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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]
This is an application for judicial review of a
decision dated January 14, 2015 by Linda Brouillette, Director General, Human
Resources, Transport Canada rendered in her capacity as the Deputy Head’s
Nominee for Classification Grievances (the Nominee). The decision approved the
recommendation made on January 8, 2015 by a Classification Grievance Committee
(the Committee) which recommended the applicant’s position as Building Services
Planning and Coordination Officer in the Department of Transport Canada, in
Ottawa remain classified at the AS-01 Group and Level.
[2]
As Transport Canada is a department within the
federal public service it falls within the Financial
Administration Act pursuant to which, in this case, Treasury Board is the
employer.
[3]
For the reasons which follow this application
for judicial review is allowed, in part.
I.
BACKGROUND
[4]
On February 12, 2014 the applicant grieved that
his position of Building Services Planning and Coordination Officer was not
properly classified in accordance with his duties and responsibilities.
[5]
The grievance followed upon an update and review
of the applicant’s position in the course of the reorganization and review of
the Facilities Management Branch which update and review determined through the
Organization and Classification Committee that the position would stay at the AS-01
group and level effective January 4, 2013.
[6]
The applicant’s grievance was subject to the
Treasury Board Classification Grievances Policy and Classification
Grievance Procedure under which a Classification Grievance Committee
composed of three people who are appointed based upon certain stipulated
criteria convene to determine the grievance.
[7] In keeping with the procedure a committee of three persons was
struck. The chairperson, Robin Gilmore, was a Senior Human Resources
Consultant – Classification. The other committee members were a Classification
Grievance Analyst from Treasury Board and a Manager, Lease Administration and
Real Estate from Public Works and Government services Canada.
[8]
Pursuant to the Mandate section of the grievance
procedure the Committee “is responsible for
establishing the appropriate classification and evaluating the grieved position
based on the duties assigned by management and performed by the employee and
the additional information provided by management and by the grievor and/or his
or her representative”. In addition the Mandate specifies that “The classification recommended to the deputy head or nominee
must be fair, equitable and consistent with the classification principles.”
[9]
The procedure states it is critical that the
grievance decision be based on an accurate Work Description performed by the
employee and signed by management. It recommends that an on-site review of the
work with the employee concerned and the supervisor should be conducted. In
this case an on-site review was done on September 3, 2013 and the conclusion
was “there is coincidence with the work described and
the work performed.”
[10]
The parties agree that the appropriate
classification group in this case is Administrative Services (AS). The group
definition, found in the definition and inclusions of the Program and
Administrative Services Group, states:
The Program and Administrative Services Group comprises positions
that are primarily involved in the planning, development, delivery or
management of administrative and federal government policies, programs,
services or other activities directed to the public or to the Public Service.
[11]
Within the Classification Standard there are
four factors and nine elements or sub-factors used in the point rating plan
which is employed to evaluate jobs in the Administrative Services Group.
Marked by bold face type in the table below are the ones in dispute in this
case:
Knowledge Education
Experience
Continuing Study
Decision Making Scope
of Decisions
Impact of Decisions
Responsibility
for Nature of Contacts
Contacts Persons
Contacted
Supervision Numbers
Supervised
Level of Employees Supervised
[12]
There are six steps involved in determining the
classification of a position which steps include examining the position being
rated to positions above and below it in the organization, studying the
position description to ensure an understanding of it as a whole and comparing
the description of the factor in each of the bench-mark positions to the factor
in the position being rated as well as to bench-mark positions above and below
it. Ultimately, the position being rated is compared as a whole to positions
with similar total point values in the organization as a validity check on the
total rating.
[13]
As is readily apparent from a review of the
policy, procedure and classification standard documents, as well as the Work
Description and bench-mark positions, the task of performing the job evaluation
and determining the position classification requires attention to detail, a
significant degree of expertise and an understanding of the overall work
environment of the position being evaluated. In this case, the decision of the
Committee was unanimous. It is not to be interfered with lightly.
II.
the Decision under Review
[14]
While the decision under review is that
of the Nominee, the Nominee approved the unanimous recommendation of the
Committee. Therefore, the reasons under review are those of the
Committee. The Nominee did not provide any additional reasons or justification
for the decision.
[15]
The Committee received both a written
presentation from the applicant’s representative as well as a verbal one. On
occasion the Committee asked the representative clarifying questions which were
answered. The applicant also answered questions from the Committee. The
applicant’s supervisor was contacted by the Committee to provide information as
a management representative.
[16]
The applicant grieved the rating assigned to
three factors: Knowledge - Experience; Scope of Decision Making; and
Responsibility for Contacts. The Committee accepted the applicant’s position
on Knowledge - Experience but rejected Scope of Decision Making and Responsibility
for Contacts. After adjusting the points for Knowledge - Experience the rating
of the grieved position was still AS - 01 therefore the applicant filed for
judicial review of the decision.
[17]
The application before me dealt only with Scope
of Decision Making and Responsibility for Contacts.
A.
The Applicant’s Submissions
[18]
The applicant’s position is that the decision of
the Nominee was plainly unreasonable because the Committee misapplied the
definitions in the AS classification standard and modified the duties in the
Work Description. The applicant contends that in reaching their conclusions with
respect to the three factors being reviewed in this grievance the Committee reached
a conclusion which “flew in the face of the record
before it”.
[19]
In addition, the applicant submits the Committee
did not follow the process prescribed in the Classification Grievance
Procedure and did not assess the duties and activities in light of the
definitions set out in the Classification Standard.
[20]
It is submitted that the Committee “read out” or otherwise ignored parts of the Work
Description when dealing with the rating scale for Decision Making by ignoring
the plain wording of the Work Description, in particular the word “develops” which, of the thirteen Key Activities
listed in the Work Description, appears in six of them. This is said to be
important because the word “develops” implies
change or modification and the difference between a degree A and degree B
factor in the AS Classification Standard is the difference between decisions
which require some judgment and selection of a course of action indicated by established
methods versus requiring a moderate degree of judgment by selection of courses
of action that may require some modification of established methods. (My
emphasis)
[21]
Similarly the applicant submits that when
dealing with Responsibility for Contacts the Committee in arriving at its
conclusion ignored the word “negotiates” and
altered the definition of the word “Associates”.
[22]
The word “negotiates”
is said to be important because in degree B for the sub-factor Nature of
Contacts the description is to persuade and obtain assistance or agreement of
others which the applicant says of necessity involves negotiating. The degree
A description is somewhat more passive saying the nature is “[t]o give, obtain and exchange information requiring
discussion, explanation and cooperation.”
[23]
The word “Associates”
is important with respect to the degree of persons contacted. The applicant
contends that he has contact with Associates both by definition of the word
Associates in the Classification Standard and the description in degree 2 which
refers to contact with Associates in private organizations.
[24]
“Associates” is defined in the Classification Standard as:
persons with whom contacts are customarily
established over long periods of time and in circumstances that develop an
awareness of each other’s requirements.
[25]
In response to a question from the Committee the
applicant provided as examples of external service providers with whom he is in
regular contact moving companies, landlords, Public Works Government Services
Canada, (PWGSC), suppliers and locksmiths. It was submitted that these
external service providers constitute Associates.
B.
The Respondent’s Submissions
[26]
The respondent submits no reviewable error was
made by the Nominee in approving the recommendation made by the Committee as it
clearly and properly explained its analysis and it evaluated and considered the
duties in the Work Description within the organizational context while properly
applying the definitions in the AS Classification Standard.
[27]
The respondent states that as there are six
steps in the AS Classification Standard it demonstrates that the classification
process is more than simply a word match between words in the Work Description
and words in the factor degree definition in the AS Classification Standard.
[28]
Specifically with respect to Scope of Decision
Making the Respondent relies upon the Committee’s finding that the Applicant’s
decision-making is limited by the role of his supervisor because the role of
the supervisor includes developing, implementing and monitoring policies. The
Committee also found the applicant acted as the voice of the client while PWGSC
was responsible for the delivery of services and so the Applicant’s freedom to
make decisions was limited.
[29]
The Respondent disputes the Applicant’s
allegation that the Committee either disregarded or “read
out” portions of the applicant’s Work Description. It states the Committee
provided clear reasons and analysis for its decision and as such made no
reviewable error.
III.
Analysis
A.
Standard of Review
[30]
The parties agree that the standard of review in
this case is reasonableness.
[31]
I accept this is the standard. Caselaw of this
court has determined that “Classification Grievance
Committees perform highly specialized functions and possess expertise in matters
of classification; decisions made by the Committee are to be afforded a high
degree of deference. The appropriate standard of review is reasonableness.” McEvoy
v. Canada (Attorney General), 2013 FC 685 at para. 39.
B.
Guiding Principles
[32]
Counsel also agreed that certain guiding
principles arising from Dunsmuir v. New Brunswick, 2008 SCC 9 and cases
decided thereafter govern the way in which I am to review a decision on the
reasonableness standard. Briefly the principles are:
•
courts must show “respect
for the decision-making process of adjudicative bodies with regard to both the
facts and law”;
•
reasons should be looked at in the context of
the entire record including the evidence, party submissions and the process
etc.;
•
reasons do not have to be perfect nor do they
have to be comprehensive;
•
reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of
possible outcomes that are defensible on both the facts and the law;
•
adequacy of the decision’s reasons is not a
stand-alone basis for quashing a decision;
•
it is not the role the court to re-weigh the
evidence or to substitute its preferred outcome; and
•
reasons may not include all the arguments,
statutory provisions, jurisprudence or other details a reviewing judge might
have preferred but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis.
See for example: Newfoundland and
Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011
SCC 62; McEvoy v. Canada (Attorney General), 2013 FC 685 and Peck v.
Parks Canada, 2009 FC 686 . Other citations are omitted as the principles
are well known and undisputed.
[33]
In this case as with many others perhaps the
most important guiding principle is:
•
A decision-maker is not required to make an
explicit finding on each constituent element, however subordinate, leading to
its final conclusion. If the reasons allow 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, the Dunsmuir
criteria are met. Bergeron v. Canada (Attorney General), 2015 FCA 160
at para. 58.
C.
The Classification Documents
(1)
The Organization and Classification Committee
Report
[34]
In early 2013 the Facility Management Branch was
reorganized and all work descriptions were reviewed/updated. As a result of
those changes the applicant’s position was assigned supervision of another
position. His revised job was proposed by his supervisor (who was then titled
Chief, Facility Management), to be reclassified to Group and Level AS-02. The
supervisor’s position was rated as Group and Level AS-04.
[35]
On November 28, 2013 the Organization and
Classification Committee of the Classification Centre of Excellence met and
received a presentation from the applicant’s supervisor to explain the background and context of the
reorganization and “the evolution of the
responsibilities and workload that led to the request to reclassify the
position”. After comparing the applicant’s work to both a higher and a
lower bench-mark position in each of the four factors the consensus of the Committee
was that the rating should remain as AS-01.
[36]
Under the heading “Internal
and External Relativity” the Committee noted as follows:
This position is unique in the department.
A request to get relativity has been sent to three departments, and only one of
them answered back. However, the analysis of the relativity sent by this
department showed too many differences between both positions to use this
relativity.
[37]
During submissions the respondent stressed the
importance of reviewing the applicant’s position as a whole and within the
organizational context. Given that there is no comparable position anywhere within
the organization, this step must have been limited to reviewing positions above
and below the applicant’s. Therefore the analysis of those positions by the
Committee becomes all the more important since the important “sixth step” of comparing the position being rated to
positions to which similar total point values have been assigned as a “check on the validity of the total rating” could not
be performed.
(2)
The Classification Grievance Procedure
[38]
The importance of Committee deliberations and
the expression of them in the written report are clearly set forth in the
Classification Grievance Procedure Annex 1 (Classification Grievance Committee
Report) section 7 which states:
Committee deliberations
7. This section is the heart of the report
and must clearly indicate how the committee arrived at its recommendation. It
should analyse the grievor’s work in relation to the classification
standard(s), the arguments made by or on behalf of the grievor and management’s
information, and provide a detailed explanation for the committee’s evaluation.
It should state why the committee evaluated the position in the specific
category and occupational group and level, what, if any, other categories or
groups were considered and the reasons why these were considered
inappropriate. If the existing category, group, level and rating are being
confirmed, a complete rationale must, nevertheless, be developed. Statements
such as “No change to present
rating” are not acceptable.
[39]
Indeed the importance of having a comprehensive
report from the Committee including a justification for the Committee’s
recommendation is so important that the classification grievance procedure
contains extensive guidelines for preparing the report. In this case the
Committee has properly followed the guidelines and there is no dispute with
respect to the format of the report. The dispute is with respect to the
analysis within the report and the sufficiency of the reasons.
(3)
The On-Site Review
[40]
As previously stated, the On-Site Review report
is an important document which helps to fulfill the required classification
Mandate that what is to be reviewed and classified are the duties assigned by
management and performed by the employee. The on-site review includes a
comment from the applicant that “the role and
responsibilities of the position have changed and he now has a bigger impact on
the decisions taken and can be challenged on the quality of the information he
is providing to management”. As this comment appears directly above the
conclusion that “there is coincidence with the work
described and the work performed” it appears to have been accepted by
the on-site reviewer as a true statement and in accordance with the guiding
principles I accept it was taken into account by the Committee in their
deliberations.
D.
The Sub-Factors and Degrees being Examined
[41]
Each of the three sub-factors being challenged
were analyzed by the parties and by the Committee against the Rating Scale
found in the Classification’s Standard. The Committee’s analysis included
reviewing bench-mark positions above and equivalent to the applicant’s
position.
(1)
Scope of Decision Making
[42]
The applicant proposed this factor be rated degree
B rather than degree A primarily because the applicant’s work “may require some modification of established methods”
which is part of the description of the degree B impact. It was asserted that
it was self-evident that in order to develop new or modify existing policies
established methods had to be modified.
[43]
In comparing the applicant’s position to the
bench-mark position Administrator, Post Abroad (The Hague) which is at degree A
the Committee noted decisions and recommendations made by the person in that
position were in accordance with directives, processes and established
practices whereas when comparing it to bench-mark position Administrator, Post
Abroad, Tokyo which is a degree B most decisions were made by reference to
established practice however some modifications were required in the letting of
contracts arranging for housing and dealing with locally engaged staff.
[44]
The Committee requested examples of situations
that required the applicant to modify established methods. Two such examples
were provided by the applicant to the Committee. One involved changes
resulting from the creation of Shared Services Canada which eliminated the
in-house IT team for building related services. The other arose as a result of
an internal audit which recommended stricter tracking mechanisms for which the
applicant developed a portion of the new data tracking system as well as the
process to capture and track that data.
[45]
The applicant’s supervisor whom the Committee
had contacted confirmed the applicant’s role in developing tracking systems and
in performing expenditure tracking. She also confirmed the distinction between
the applicant and the other positions in the work unit and confirmed the
distinction between the applicant’s role and the role of the Facilities
Management team as a whole. The applicant’s role in reviewing plans was
confirmed by the supervisor.
Analysis
[46]
It is not within my purview to second-guess why
the Committee found that degree A for Scope of Decision Making was the correct
one rather than degree B. My role is to determine whether “the reasons allow 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”
whereupon the Dunsmuir criteria are met. Bergeron v. Canada
(Attorney General), 2015 FCA 160 at para. 58.
[47]
In reviewing the rating of this factor the
Committee paid special attention to the portions of the Work Description
highlighted by the applicant’s representative as well as comments of the
applicant. The Committee found that the applicant’s decision-making
responsibility was limited by the role of his supervisor and that although the
applicant was responsible for acting as the voice of the client on occasion it
was PWGSC that was responsible for the delivery of the services. Therefore the
applicant’s freedom to make decisions was limited.
[48]
The Committee also carefully compared the
applicant’s position to the bench-mark positions above and equal to it and
articulated why it chose one as being equivalent rather than the other.
[49]
Although the applicant is able to point to many
instances where the word “develops” is used in
the applicant’s Work Description and submitted that a modification of
established methods in and of itself would lead to the “obvious
conclusion” which they say was ignored by the Committee a careful
reading of the reasons of the Committee indicates that it took into
consideration the limited nature of any modifications made by the Applicant,
the fact that his supervisor’s Work Description included developing and
refining policies and practices and that decisions are also limited by the role
of PWGSC.
[50]
The Classification Standard indicates that Scope
of Decision Making refers to the freedom to make decisions and is measured in
terms of “the judgment, initiative and discretion
required to identify and resolve problems”. I agree with the respondent
that the analysis and classification, is not as simple as doing a “word match”. It is necessary to read the words in
context and look at the whole of the work involved, which the committee did in
this case.
[51]
It is clear that the Committee’s
analysis of this factor falls well within the range of acceptable outcomes. It was aware of the applicant’s arguments about established
methods, it provided its rationale for not accepting the applicant’s
submissions and as such, given the guiding principles, I am satisfied the Committee’s
decision with respect to Scope of Decision Making did consider the job as a
whole particularly when compared to the descriptions of the bench-mark
positions. In my opinion, this finding should not be set aside.
(2)
Responsibility for Contacts
[52]
The focus of submissions with respect to
Responsibility for Contacts centred on each of the two sub-factors of the
rating scale.
(a)
Nature of Contacts
[53]
With respect to Nature of Contacts the issue was
whether the applicant’s position was the more passive one of “give and obtain information” or the more active “persuade and obtain assistance or agreement”.
[54]
The Committee reviewed the Work Description wording
where, with respect to external service providers, the applicant’s position
includes “gather information and negotiate the handling
of issues and time frames for the receipt/delivery of products and services.”
Included within this was that with respect to contract movers the applicant “negotiates the priorities, costs and schedules and
supervises contract movers in conjunction with the Junior Building Coordinator”.
[55]
The applicant says these
tasks very clearly require persuasion because they include negotiation which
therefore involves “persuading and obtaining assistance
or agreement” rather than the mere delivery or receipt of information.
[56]
The respondent states the Committee did not
minimize nor disregard the duties and activities in the applicant’s Work
Description as evidenced by its discussion of the applicant’s answers to the Committee
when he was asked to provide details about the nature of his interaction with
the landlord, his interaction with the private sector and his role with
contracted services.
Analysis
[57]
The Committee found and stated in its reasons
that while the applicant may be required to discuss and obtain cooperation,
the requirement to persuade and obtain agreement occurred at the time of
negotiation of the contract or in discussions between the landlord and the
lessee. These were found to be the responsibility of either departmental
contracting staff or PWGSC and not the applicant. This is consistent with the
work descriptions which were before the Committee.
[58]
The Committee considered the answers to the
clarifying questions it had asked the applicant with respect to external
service providers and the sort of issues with which the applicant is involved.
It considered the examples provided by the applicant of situations which
required him to modify established methods and his project management role.
[59]
After examining the two bench-mark positions the
Committee determined the applicant’s position was equivalent to bench-mark 3
rather than bench-mark 4 and therefore the position should be assigned a rating
of degree A rather than degree B.
[60]
Counsel for the applicant compared the Committee’s
reasoning in this respect as being more similar to the decision in Allard v
Canadian Food Inspection Agency, 2012 FC 979 as opposed to the decision in Beauchemin
v Canadian Food Inspection Agency, 2008 FC 186. I am urged to find that Allard,
in which it was found that the Classification Grievance Committee decision had
to be set aside because it “did not merely modify the
applicants’ responsibilities to include the context in which these
responsibilities are carried out, but that they have, in many respects, called
into question the very nature of the activities listed in the work description”
is more on point with the case before me than is the Beauchemin case in
which a committee’s decision was upheld. Both cases were decided by Justice de
Montigny when he was a member of this Court.
[61]
Having reviewed both cases, I find neither of
them particularly persuasive as they are each quite fact specific as is the
case before me. But, if forced to choose between them, I believe this case is
more similar to Beauchemin than it is to Allard. In Allard,
which involved classification of a veterinarian position, the core issue was
that there was no actual consensus as to the work description and the duties
performed even though it had resulted from an agreement made in the context of
a content grievance. Justice de Montigny found that “the
disagreement was not about mere terms but on essential aspects of the work
description.” and “the Committee exceeded its
jurisdiction by modifying the content of the applicants’ work description without
giving them the opportunity of being heard by an arbitrator”.
[62]
In this case there is no dispute as to the work
description. The Committee appropriately sought clarification of the duties
performed by the applicant and the context in which they were performed. In
Beauchemin, which reviewed an administrative services position
classification, the committee there concluded that some aspects of the work
performed were not a permanent requirement and it also considered the client
base served by the position. It was held that “While
the applicant’s disappointment is understandable, that cannot constitute
sufficient reason to set aside a structured and reasoned decision made at the
conclusion of the hearing during which her representative was able to put forth
all the reasons and file all the evidence in support of her grievance.”
Or, to use a phrase found in Allard, it could be said that in Beauchemin,
as in this case, the Committee looked at “the
applicants’ responsibilities to include the context in which these
responsibilities are carried out”.
[63]
For these and the same reasons as previously
stated under Scope of Decision Making, I find the Committee’s reasons clearly
show the decision is well within the range of acceptable outcomes. This is
particularly so given the nature of the answers by the applicant to the
questions posed by the Committee which answers indicated that his function in
many cases was largely to speak on behalf of his departmental clients and to
check invoices and oversee expenditures.
(b)
Persons Contacted
[64]
With respect to the factor Persons Contacted,
the critical element distinguishing a degree 1 and degree 2 sub-factor as put forward
by the applicant was the word “Associates”.
[65]
The applicant submitted that the Committee’s
finding that the contacts the applicant had with external service providers (which
included private landlords, moving company workers, locksmiths and suppliers of
furniture and audio-visual equipment) did not qualify as “Associates” within the meaning of the Classification
Standard was unintelligible and based on a consideration which was irrelevant
to the question of whether the applicant had contact with Associates. In doing
so the applicant submitted that the Committee made its decision on a basis
which was outside the factors of the classification standard or, if it was not,
the Committee’s reasons failed to reasonably articulate the grounds upon which
the decision was made.
[66]
The respondent’s position was that the Committee
found that it was often the same service providers due to contracting
requirements and not because the contacts were customarily established over
long periods of time.
E.
Analysis
[67]
The definition of Associates in the
Classification Standard is clear. It refers “to
persons with whom contacts are customarily established over long periods of
time and in circumstances that develop an awareness of each other’s
requirements”. This definition is contrasted with “Officials” who are administrators or other persons “with some degree of executive authority who are not
associates” and with “Colleagues” who are
employees in the federal public service.
[68]
Here the persons with whom the applicant comes
in contact are not limited to employees in the federal public service and they
are therefore not Colleagues.
[69]
It would appear that the persons such as
landlords and movers also do not have executive authority and so are probably not
Officials.
[70]
Whether or not these persons are Associates is a
critical question which must be answered by reference to the Work Description,
the actual job performed and the Classification Standard.
[71]
In addition to defining the word “Associates” the Classification Standard requires that
only contacts that are “an integral part of the work
and that result from the duties assigned or sanctioned by management are to be
considered.” It is therefore not every person with whom an employee
comes in contact who would qualify as being a “contact”
within the classification factor.
[72]
The problem with the Committee’s decision with
respect to this sub-factor is that on a plain reading, given all the
information before the Committee both verbal and documented, I do not
understand their reasoning. As a result, even when affording deference and
considering the wealth of information before the Committee I am unable to conclude
whether this part of the Committee’s decision is within the range of acceptable
outcomes.
[73]
The relevant analysis of this sub-factor provided
by the Committee was:
The committee discussed the Persons
Contacted component of the Responsibility for Contacts factor and examined the
BM 4, Administrative Officer, Research Station, assigned a rating of degree 2
because it has contacts with administrative officers representing the
University in its landlord relationship, which are considered associates. The
committee noted that the AS Classification Standard indicates that Associates “refers to persons with whom contacts are
customarily established over long periods of time and in circumstances that
develop an awareness of each other’s requirements.” The committee further considered that the notes to raters for this
factor of the AS Classification Standard indicate that only those contacts that
are integral to the work and resulting from duties assigned or sanctioned by
management are to be considered. The committee found that while the GP does
have contact with external service providers (e.g. contracted movers), that
these tend to be the same service providers is due to the particularities of
the service contracts and standing offers negotiated by the departmental
contracting and procurement staff. The committee therefore determined that
such contacts do not constitute associates per the AS Classification Standard.
The committee therefore assigned a rating of degree 1 for Persons contacted.
(My emphasis)
[74]
The definition of Associates requires the contact
to be customarily established over long periods of time. By necessity therefore
these will be the same service providers. In determining how to measure the
difficulty and the importance of the contact for classification purposes it is
not how such contact came to be a service provider (assuming they
otherwise fall within the definition of Associates by being “established over long periods of time”, which is the
case here) but rather whether the contact is an integral part of the work resulting
from the duties assigned. By considering the “how”
and then drawing the conclusions it did the committee appears to have ignored
or misapprehended the definition in the Classification Standard.
[75]
The Notes to Raters for Person’s Contacted confirm
that an officer of a private organization or industry may be an associate or an
official depending on the circumstances. This may also apply to a contact from
a department or another level of government. If the duties of the position
include contacts with more than one combination of persons the points for each
degree are to be determined and the highest point value used.
[76]
In this case the applicant had ongoing
relationships with landlords such as SNC-Lavalin, another department - PWGSC,
the Owner of the private moving companies and various suppliers. On the face
of it the first three types of contacts would all be at least Associates and,
in the case of PWGSC, might well be Officials. Having recognized it as a
requirement, there is no analysis by the Committee as to whether these contacts
are an integral part of the work of the applicant. Had it been so determined, that
would have led to consideration of whether in fact they were Colleagues or
Associates or Officials and then it would have determined how many points each
such type of contact would drive. This analysis is missing because the
Committee determined that there were no Associates and, by implication, no
Officials.
[77]
Unfortunately, I am left with no appreciation
whatsoever as to the significance of the Committee’s observation “that these tend to be the same service providers is due
to the particularities of the service contracts and standing offers”.
It appears to be an important part of their reasoning but I see it as a non
sequitur.
[78]
It may be the Committee can better explain what
it means but it does not fall to me to cooper up an outcome that the Committee,
if it had properly instructed itself, might have arrived at after pursuing the
balance of the analysis. Bergeron v. Canada (Attorney General), 2015 FCA
160 at para. 59.
[79]
As I cannot understand this part of the
Committee’s decision I have no way of determining whether it falls within a
range of possible outcomes. The analysis is incomplete. I cannot understand
the basis on which the decision was made therefore I cannot 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 and I grant the application with respect to setting aside the decision
of the Nominee as it concerns the rating of the factor Responsibility for
Contacts with respect to the sub-factor Persons Contacted.
[80]
I realize this may be a pyrrhic victory for the
applicant as, even if he succeeds on a reconsideration of the matter in having Persons
Contacted moved to degree 2, since I have determined there was no error with
respect to the classification of Nature of Contacts it is still degree A and
the additional 12 points which would be gained would not be sufficient to move
the overall classification from an AS-01 to an AS-02 group and level.
[81]
As I have made a finding that the reasons given
were insufficient I do not view this as a matter which needs to be determined
by another committee. The original committee should reconsider its reasons in
light of my findings.
[82]
Success in this matter was divided therefore there
will be no costs to either party.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The application for judicial review is allowed in part and the
decision of the Director General Human Resources being the Deputy Head’s
Nominee for Classification Grievances with respect to the portion of the
decision which determined there would be no change to the rating for
Responsibility for Contacts – Persons Contacted and thereby dismissing the
applicant’s grievance in that regard, is set aside.
2. No costs are awarded.
“E. Susan Elliott”
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