Docket: T-993-15
Citation:
2016 FC 546
Ottawa, Ontario, May 16, 2016
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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SYLVAIN BOUCHER
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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]
The Applicant, Sylvain Boucher, is a senior
database administrator based in Kingston, Ontario, working for the Department
of National Defence. On September 19, 2011, he was provided with his employer’s
decision classifying his position at the CS-02 level, with an effective date of
July 23, 2007. Because he was supervising at least one other employee with a
CS-02 classification, the Applicant grieved that his position should be
reclassified at a higher level, CS-03, retroactive to July 23, 2007.
[2]
However, his grievance dated September 26, 2011,
was denied by the Deputy Minister’s delegate (the Director General Workplace
Management) in a letter dated May 28, 2015, wherein the delegate [the Delegate]
approved the recommendation of the Classification Grievance Committee [the
Committee] that the grieved position should be classified at the CS-02 level
with an effective date of July 23, 2007. The Applicant now applies, pursuant to
section 18.1 of the Federal Courts Act, R.C.S. 1985, c. F-7, as am, for
judicial review of the Delegate’s decision and requests an order setting aside
such decision and the Committee’s report upon which it is based and remitting
the matter back to the Committee for reconsideration.
I.
Background
[3]
The Treasury Board’s Classification Standard for
computer system administration assesses four main factors in determining the
classification of a computer service [CS] position: knowledge; decision making;
responsibility for contacts; and supervision. Although the Committee’s report
[the Report] upon which the Delegate founded her decision assessed all four of
these factors, only those relating to knowledge and to supervision were
challenged as part of the representations made on the Applicant’s behalf to the
Committee on December 9, 2014.
[4]
As of July 23, 2007, the Applicant’s position
supervised four subordinate positions (numbers 315671, 251436, 328149, and
800145), each of which was classified as a CS-02 level position and one of
which was then vacant. Although one of these positions was later reclassified
downward to a CS-01 level and in March 2009 the vacant position filled, by
August 19, 2011, the Applicant still supervised three CS-02 subordinates. By
the time of the Committee’s Report in May 2015, the Applicant continued to
supervise two positions classified at the CS-02 level. The parties do not
dispute that subordinate CS-02 positions still report to the Applicant’s
position.
[5]
The Report summarized the submissions and
information provided by the parties and also outlined the Committee’s
deliberations, including its receipt of information emanating from a regional
issues study initiated in May 2008 about concerns raised by the Professional
Institute of the Public Service of Canada [PIPSC] with respect to the CS
classification groups. One of the concerns identified in this study was the
existence of instances where some positions reported to another position at the
same group and level. Although the chair of the Committee had requested at the
hearing on December 9, 2014, that the time for completing the Committee’s
report be extended to allow sufficient time for completion of the study, the
Applicant’s representative approved an extension of the due date for the Report
only until May 29, 2015. Ultimately, this study was completed a week or so
before the hearing of this matter and the completed study [the Study] was not
available when the decision under review was made.
[6]
For purposes of the Classification Standard, the
supervision factor has two interrelated elements or sub-factors: (i) “level of employees supervised”; and (ii) “number of employees supervised”. The Applicant
challenges the Committee’s assessment and determination with respect to the
level of employees supervised, which according to the Classification Standard
refers to the highest level supervised. In assessing the level of employees
supervised, the Classification Standard establishes a point system: for a
degree 1 position, which is one that supervises administrative support or
junior employees, 15 points are awarded; for a degree 2 position, which is one
that supervises intermediate employees in the administrative, foreign service,
and other categories, 29 points are awarded.
[7]
The Applicant’s representative had recommended
to the Committee that an increase in points for the supervision factor, based
on the level of employees supervised, should be made with respect to the
position occupied by the Applicant. Specifically, the Applicant’s
representative argued that the points awarded for such position should be 29
(degree 2), rather than 15 (degree 1), because the Applicant supervised other
CS-02 positions. Had the Committee accepted this recommendation, the overall
total of points assigned to the Applicant’s position for all factors would have
been 460, ten points beyond the range of 301 to 450 points associated with a
CS-02 level position.
[8]
The Committee, however, rejected the Applicant’s
submissions in this regard, stating as follows:
PIPSC recommended an increase to the Level
of Employees Supervised element of the Supervision factor to A2/29 points
based on the fact that in 2007, the GP [grieved position] was supervising three
CS-02 subordinates positions. The number of employees supervised by the GP is
not contested by either party however the element of Level of Employees
Supervised is. Definition of degree 2 states that the position supervises intermediate
employees in the administrative and foreign services, or other categories while
degree 1 stipulates that the supervision applies to employees in the
administrative support category or junior employees in other categories.
The Committee does not dispute that CS-02 positions might have been put under
the grieved position’s responsibility however the Committee felt that it had to
take into consideration in its deliberations the fact that the CS Group
Regional Issues Study was put in place in order to correct organizational
issues of that nature. The Committee reached consensus and maintained a degree
A1/15 points for this factor taking into consideration the conclusions of the
CS Group Regional Issues Study. This factor will be reviewed in detail in the
Evaluation section of the report. [Emphasis in original]
[9]
The Committee also rejected submissions by the
Applicant’s representative that, in view of a generic work description for a
CS-03 position, the grieved position should be classified at that level as
well. It rejected these submissions primarily because the Applicant did not
report to a CS-04 supervisor unlike that for the generic position description.
[10]
The Committee then performed an evaluation as to
the four main factors as noted above: knowledge; decision making;
responsibility for contacts; and supervision. It is not necessary to summarize
in these reasons the Committee’s evaluation and findings with respect to each
of these factors because only the Committee’s evaluation of the supervision
factor remains at issue in this application for judicial review. In this
regard, the Committee did not recommend any change in the number of points
awarded to the Applicant’s position in respect of the level of supervision, concluding
as follows:
The GP is responsible for the on-going
supervision of a Database Analyst, a Database Administrator, and a Web
Developer. The supervisory responsibilities include: participation in the
selection process, the performance assessment, the provision of training, and
the provision of discipline of staff when required. The GP is also responsible
for assigning work and providing advice and direction. Although the
organizational chart indicates that two subordinate positions are or were at
one point in time classified at the CS-02 level, the Committee feels that due
to the circumstances i.e. the CS Group Regional Issues Study addressing same
level reporting relationships, the subordinate positions are not to be
considered as intermediate level positions for the purpose of this
recommendation.
[11]
Thus, the Committee recommended no changes to
the overall total of points assigned to the Applicant’s position and maintained
the CS-02 classification, a classification with which the Delegate agreed and
approved on May 28, 2015.
II.
Issues and Standard of Review
[12]
Despite the parties’ formulations of the issues
raised by this application, I am of the view that the only issue which needs to
be addressed is whether the Delegate’s decision was reasonable.
[13]
I agree with the parties’ submissions that the
appropriate standard of review in respect of the Delegate’s decision is
reasonableness. Case law has established that the applicable standard of review
for a classification grievance committee decision is one of reasonableness, and
that such a decision is to be afforded a high degree of deference due to the
decision-maker’s high level of expertise (see, for example: Tamborriello v
Canada (Attorney General), 2014 FC 607, 457 FTR 130, at paras 11 to 13; McEvoy
v Canada (Attorney General), 2013 FC 685, 435 FTR 69, at para 39; also see Canada
(Attorney General) v Gilbert, 2009 FCA 76 [Gilbert], 388 NR 59, at
paras 22 and 23; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
at para 49 [Dunsmuir]; and Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.
708, at para 13 [Newfoundland Nurses]).
[14]
The Court should not interfere, therefore, if
the decision is intelligible, transparent, justifiable, and defensible in respect
of the facts and the law: Dunsmuir at para 47. Those criteria are met 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”: Newfoundland
Nurses, at para 16. The decision must be considered as an organic whole and
the Court should not embark upon a line-by-line treasure hunt for error (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd.,
2013 SCC 34, [2013] 2 S.C.R. 458, at para 54; see also Ameni v Canada
(Citizenship and Immigration), 2016 FC 164, [2016] FCJ No 142, at para 35).
III.
The Parties’ Submissions
[15]
The parties’ submissions as to the
reasonableness of the decision under review can be summarized as follows.
[16]
The Applicant submits, amongst other things,
that the supervision factor for his position should be assessed based on the
Classification Standard and on the highest classification level supervised by
the Applicant as of July 23, 2007. According to the Applicant, because he
supervised at least one other CS-02 position at that time and has done so
continuously since then, the level of supervision involved an intermediate
employee and therefore 29 points (degree 2), rather than 15 points (degree 1),
should have been awarded by the Committee. The Applicant further contends that,
regardless of whether it would have been more appropriate for the CS-02
positions reporting to him to report to a CS-03 supervisor, the fact of the
matter is that it is the Applicant who has supervised or is supervising them.
[17]
The Applicant also submits that, despite the
Study which has now been completed, nothing in the Classification Standard is
inconsistent with having an employee report to a supervisor who is at the same
classification level. Had he been awarded the appropriate points for
supervising a CS-02 position, the Applicant says this would have resulted in
his position being reclassified to the CS-03 level. In the Applicant’s view,
the Committee’s recommendation and the Delegate’s approval of it was
unreasonable because it was based on concerns raised by the Study, which at the
time of the decision had not been completed, and not based on the
Classification Standard. In relying on the concerns raised by the Study about
same level reporting, the Applicant says the Committee failed to give him full
credit for supervising CS‑02 employees and to consider that the
classification decision must be based on the reporting relationship as of July
23, 2007.
[18]
The Respondent argues that since the Committee
was denied an extension of time for completing the Report until conclusion of
the Study, it was reasonable for the Delegate to approve the Committee’s
recommendation. In addition, the Respondent states that the Committee is a highly
specialized decision-maker with specific expertise which warrants deference by
the Court, and also that the Committee clearly explained its analysis and the
issues.
[19]
According to the Respondent, the Committee could
not ignore the outstanding same level reporting issue because the Committee did
not know, for certain, the appropriate classification levels of the subordinate
positions being considered by the Study. Contrary to the Applicant’s position
in this regard, the Committee’s mandate was not to assess the level of
supervision as of July 23, 2007 but, instead, to establish the appropriate
classification and evaluate the Applicant’s position. The Respondent states
that the Committee could not have considered the subordinate positions as “intermediate” because the classification levels of
the positions were not known beyond the one position which had been downgraded.
IV.
Is the Decision Reasonable?
[20]
For the reasons that follow, I find the Delegate’s
decision unreasonable and not within a reasonable range of outcomes.
[21]
The Applicant filed his grievance in September
2011 and the Committee convened a hearing on December 9, 2014. The Committee
issued its Report in late May 2015; and, on May 28, 2015, the Delegate
approved the Committee’s recommendation that the Applicant’s position be
evaluated at the CS-02 level effective July 23, 2007. Between the date the
grievance was filed and the decision made, therefore, nearly four years had
passed.
[22]
The Respondent’s argument that it was reasonable
for the Delegate to approve the Committee’s recommendation, because the
Committee was denied an extension of time for completing the Report until
conclusion of the Study, is devoid of any merit. It is disingenuous,
considering the passage of time, for the Respondent to argue that because the
Applicant would not consent to yet further delay, that the Committee could
reasonably find that classifications for two of the subordinate positions were
not settled and hence the Applicant was not supervising CS-02 positions. The Respondent
notes in its written memorandum that the Study was to be completed by December
2015, a date which essentially would have meant at least a further seven month
delay from when the decision was rendered on May 28, 2015. It would also
further extend the time between the Applicant’s filing of his grievance and the
decision being rendered into more than four years.
[23]
Moreover, for the Delegate to adopt the Committee’s
determination that classification of the subordinate positions was uncertain
because they might be retroactively changed in response to an
uncompleted study is, to say the least, speculative and, consequently,
unreasonable. This speculation by the Committee renders the decision neither
justifiable nor intelligible, particularly because the Classification Standard
clearly and unequivocally states: “‘level of employee
supervised’ refers to the highest level supervised.” The simple fact of
the matter is that, at all relevant times, the Applicant actually supervised at
least one intermediate CS-02 position. The Classification Standard clearly
delineates what a reasonable decision in this regard would be; given the lack
of discretion to deviate from what “level of employee
supervised” means, the Committee’s evaluation of the supervision factor
in this case was clearly unreasonable because it did so based not on the
highest level supervised, but on what that level might be following the conclusion
of the Study and any resulting reclassifications.
[24]
As to the Respondent’s argument that the
Committee’s mandate, contrary to the Applicant’s arguments, is not to consider
the position as of July 23, 2007 but, rather, to consider the appropriate
classification, it is true that its mandate is a broad one in view of section
V.A.1 of the Classification Grievance Procedure [the Procedure]. This section
states:
The Classification Grievance 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. It must review and analyze all
information presented in a gender neutral way. The classification recommended
to the deputy head or nominee must be fair, equitable and consistent with the
classification principles.
[25]
In addition, section V.J.1 of the Procedure
states that the Committee, in its deliberations, is explicitly to take into
account the information provided and “review all
aspects of the classification decision being grieved and attempt to reach a
consensus when evaluating the position.” This broad language suggests
that the concerns identified by the Study could possibly be considered by the
Committee.
[26]
However, even if the Committee was empowered or
had the discretion to consider concerns about same level reporting, the outcome
of its recommendation was outside the scope of reasonable outcomes because such
discretion did not give it discretion to disregard the Classification Standard.
The Committee’s acknowledgment that the Applicant supervises CS-02 positions,
yet in view of the then pending Study did not supervise “intermediate” employees, is unintelligible in the
face of the Classification Standard which dictates that supervision of intermediate
employees warrants an assessment and award of 29 points, rather than the 15
points as determined by the Committee. Indeed, this unintelligible
determination by the Committee taints the decision as a whole. It makes the
decision internally inconsistent and therefore unreasonable because it is based
on speculation as to what might occur upon completion of the Study. Since the
supervision factor was central to the decision, and because an increase in the
points awarded for supervision in respect of the Applicant’s position would be
sufficient to increase the Applicant’s position into the CS-03 level, this is
sufficient to render the entire decision, viewed holistically, as unreasonable.
V.
Disposition
[27]
In Gilbert, the Federal Court of Appeal
observed that:
[23] In deference to the specialised
knowledge of Classification Grievance Committees, when the Federal Court
determines that a judicial review application ought to be granted with respect
to a decision following a Classification Grievance Committee recommendation, it
should refer the matter back for re-consideration.
[28]
Accordingly, the Delegate’s decision is quashed
and set aside and the matter remitted back to the decision-maker for
reconsideration in accordance with these reasons.
[29]
The Applicant has requested, and shall be
awarded, his costs of this application fixed in the amount of $3,000 (inclusive
of disbursements and taxes, if any), such costs to be payable forthwith by the
Respondent to the Applicant.
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