Docket: T-1681-15
Citation:
2016 FC 917
Ottawa, Ontario, August
11, 2016
PRESENT: The
Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
BRAD GLADMAN
|
|
Applicant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant (Dr. Gladman) is a Defence Scientist
with the Department of National Defence (DND) at the DS-04 level. In January
2015, he requested a promotion to the DS-05 level. His request was denied. He
then sought an independent review of that decision through the Independent Recourse
Mechanism (IRM) available to research scientists in the Federal Public Service
who have been unsuccessful in an application for a promotion. The reviewer
appointed pursuant to the IRM (the Reviewer) concluded that the denial of the
promotion sought by Dr. Gladman should remain in effect.
[2]
On September 3, 2015, the Deputy Minister of
National Defence, relying on the recommendations of the Reviewer, dismissed Dr.
Gladman’s recourse engaged under the IRM. Dr. Gladman, claiming that this
decision is both procedurally unfair and unreasonable, initiated the present
judicial review application.
II.
Background
[3]
The process for granting promotions for DND’s Defence
Scientists is different from the one normally used within the Federal Public Service.
The process is “incumbent-based”, as opposed to “position-based” where in order to be promoted, a
public servant must apply for a different position and be appointed according
to the merit principle. Under the “incumbent-based”
process, promotions are granted when the work of the incumbent position holder reaches
a certain quality. The process was aptly described by Justice George R. Locke
in Rabbath v Canada (Attorney General), 2014 FC 999 [Rabbath]:
[3] Pursuant to both subsection 34(1) of
the Public Service Employment Act and section 2 of the Public Service
Employment Regulations (the Regulations), the internal appointment process for the Defence Scientist (DS)
group is an incumbent-based process. This process includes both a “career
progression framework” and an “independent recourse mechanism”.
[4] The Deputy Minister has established
a career progression framework for the DS group entitled the Defence
Scientific Service Group Salary Administration System. The Deputy Minister
has delegated authority pertaining to the career progression framework to the
Assistant Deputy Minister, Science and Technology, who considers the input of
the Human Resources Management Committee (the Committee) to make decisions
pertaining to the career progression of the members of the DS group.
[5] The career progression
framework provides that each DS is both paid and classified proportionally to
his or her state of professional development. In other words, the DSs are
promoted as their research work progresses. An effort to obtain a promotion for
a DS begins with a Performance Evaluation Report prepared with input from the
DS’s immediate supervisor and immediate line manager. This report includes a
professional development recommendation by the Professional Development Manager
as to whether a promotion should be granted. If the DS is not satisfied with
the recommendation, he or she may have it considered by the Committee. Based on
the state of the DS’s professional development, the Committee determines
whether the employee should receive a promotion. Such promotion typically
includes an increase in salary.
[6] The IRMDS allows an employee who disagrees
with the Committee’s decision pertaining to, among other things,
non-disciplinary denial of promotions and variation of salary increases, to
have the decision analyzed by an independent reviewer.
[7] Within 15 days following reception of the
Committee’s decision the DS may submit a written request for recourse to the
IRMDS. The Deputy Minister appoints the independent reviewer(s) within 15
calendar days from the date of the receipt of the DS’s request. Within 70
calendar days from the day that the IRMDS was initiated, the independent
reviewer makes recommendation(s) to the Deputy Minister. The independent
reviewer may either confirm the appropriateness of the process used by the
Committee or identify the issue(s) that may have negatively affected the
decision of the Committee. The reviewer may recommend to the Deputy Minister
that the Committee re-examine the case. However, the reviewer may not recommend
that a promotion or salary increase be granted, or that the normal rate of
progression of the DS be resumed.
[8] Based on the independent reviewer’s
recommendation(s), the Deputy Minister makes the final decision. This final decision
is communicated to the DS within 30 days after the recommendation(s) of the
reviewer has been made to the Deputy Minister.
[4]
Dr. Gladman has been employed by DND since 2003.
In January 2015, he submitted a draft Performance Evaluation Report (PER) in
which he requested to be promoted to the DS-05 level. While his professional
development manager initially held the view that he should accumulate a couple
of years of evidence of “consistent multi-year evidence
of creativity, impact and publications” before requesting a promotion, Dr.
Gladman’s final PER included a recommendation that he be promoted to the DS-05
level.
[5]
The Defence Scientists Career Progression
Committee (the Committee or DSCPC) met in February 2015 and reviewed 14 cases
for promotion from the DS-04 level to the DS-05 level. The Committee decided
not to endorse Dr. Gladman’s recommendation for promotion, together with 4
other cases, due to insufficient evidence of the DS-05 level criteria being
met. Dr. Gladman was advised of the Committee’s decision by letter in April
2015. The accompanying Committee’s Minute Sheet noted that “only incremental evidence” relating to the Committee’s
recommendations from the previous year had been shown and Dr. Gladman was
required to demonstrate high impact activities “in a
sustained, multi-year fashion” in order to attain the DS-05 level.
[6]
As indicated at the outset of these Reasons, Dr.
Gladman initiated an IRM to have the Committee’s decision reviewed. He
contested the denial of promotion on the following grounds:
- The career progression process used to determine his
eligibility for promotion was not applied correctly;
- The Committee’s decision was based on grounds other than the
career progression criteria; and
- There was an abuse of authority by the Committee.
[7]
The Reviewer interviewed Dr. Gladman as well as the
Acting Chief Scientist CORA, Dr. Solomon, and two members of the Committee, Mr.
Tremblay and Mr. Reding. He also reviewed a number of documents
provided by DND.
[8]
The Reviewer found that the Committee performed
its duties professionally and correctly. All three individuals interviewed by
the Reviewer indicated that Dr. Gladman’s impact expected at the DS-05 level
had not been adequately demonstrated. The Reviewer found that the two Committee
members interviewed observed that the Committee held a fair discussion
regarding Dr. Gladman’s request for promotion and that his PER was considered
in a manner similar to that of other candidates.
[9]
The Reviewer found that the Committee was well
aware of the Defence Scientist Salary Administration System (DS Salary
System) requirements for promotion. He found that Dr. Gladman’s claim that the Committee’s
decision was based on grounds other than the career progression criteria was
without merit. Regarding Dr. Gladman’s contention that the Committee abused its
authority, the Reviewer found that no abuse of authority - such as favouritism,
improper conduct, or wrongdoing – had been established.
[10]
The Reviewer also found that the statements in
the Committee’s Minute Sheet regarding “sustained
creativity and impacts need to be shown within the context of current client
requirements” and “such high impact activities
need to be demonstrated in a sustained, multi-year fashion” describe
reasonable expectations for a DS-05 scientist.
[11]
The Reviewer concluded that the Committee’s
decision to deny Dr. Gladman’s promotion should remain in effect. He
recommended that Dr. Gladman be granted an informal discussion regarding his
denial for promotion and that management work with him to develop a plan for
his career advancement.
[12]
The Deputy Minister reviewed and approved the
Reviewer’s conclusions and recommendations.
[13]
Dr. Gladman contends that the Reviewer breached
the rules of procedural fairness by not giving him notice of, nor an
opportunity to reply to, the evidence obtained by the Reviewer. He also submits
that he should have been given an opportunity to make submissions to the Deputy
Minister about the Reviewer’s recommendations.
[14]
Dr. Gladman further argues that the Reviewer
erred by dismissing his complaint concerning the Committee’s consideration of
the “Impact” criterion because the description
of that criterion does not indicate that a Defence Scientist must demonstrate a
“sustained, multi-year” Impact. He contends that
the Committee invented a new criterion of “sustained,
multi-year” impact. In this respect, Dr. Gladman submits that the
Reviewer’s mandate is not to decide what should be the criteria, but to decide
whether the Committee correctly applied the existing criteria. He claims that the
Reviewer acted unreasonably by turning his mind to whether this new criteria
was a “reasonable expectation” for a DS-05 since
his role is to determine whether the Committee based its decision on grounds
other than those set out in the career progression criteria.
III.
Issues and Standard of Review
[15]
There are two issues to be determined in this
case:
- Was the decision of the Reviewer procedurally fair; and
- Was his decision reasonable?
[16]
It is not disputed by the parties that the
standard of review applicable to the first issue is correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 43,
[2009] 1 S.C.R. 339) whereas the second issue is reviewable on a standard of reasonableness
(Rabbath, at para 31, 466 FTR 129; Hagel v Canada
(Attorney General), 2009 FC 329, at para 25). As is well-established,
where the standard of reasonableness applies, the role of the Court is to
determine whether the impugned decision “falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law” (Dunsmuir v New Brunswick, 2008 SCC 9, at para
47, [2008] 1 S.C.R. 190 [Dunsmuir]. This approach recognizes that there
may be more than one reasonable outcome and as long as the
process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to the Court to substitute its
own view of a preferable outcome (Dunsmuir, at para 47).
[17]
The parties also agree that since the ultimate decision-maker,
the Deputy Minister, adopted the recommendations set out in the Reviewer’s
report without providing his own reasons, the reasons set out in the Reviewer’s
report are considered to be those of the decision-maker (Saber & Sone
Group v Canada (National Revenue), 2014 FC 1119, at para 23, 468 FTR 286; Canada
(Attorney General) v Sketchley, 2005 FCA 404, at para 37; Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at
para 44 [Baker]).
IV.
Analysis
A.
No Breach of Procedural Fairness
[18]
I find that there was no breach of procedural
fairness in this case.
[19]
It is trite law that the content of the duty of
procedural fairness is flexible and variable and depends on the circumstances
of each case (Baker, at para 22). Some factors to consider when
assessing the minimum degree of participatory rights required include the “nature of the decision being made and the process followed
in making it,” “the nature of the statutory
scheme,” “the importance of the decision to the
individual or individuals affected” and the legitimate expectations of
the individual (Baker, at paras 23-26).
[20]
In Potvin v Canada (Attorney General),
2005 FC 391, 280 FTR 93, this Court found that where a government policy sets
out participatory rights within its framework, then the policy has in effect codified
“the extent of the requirements of procedural fairness
owed in the circumstances” (see also Thomas v Canada (Attorney
General), 2013 FC 292, at paras 78-79, 430 FTR 1 [Thomas]).
[21]
Here, I find that the IRM, which is appended to
the DS Salary System, codifies the extent of procedural fairness owed in the
circumstances of this case.
[22]
As stated above, the IRM process is designed to
provide an independent review of the process used by the Committee to assess a
candidate’s readiness for promotion and the alleged grounds of the
complaint (IRM, subsection 2.1). As such, the reviewer is not expected to
replicate the role of the Committee (IRM, subsection 3.4). The provisions of the
IRM reflect these principles. For example, subsection 3.4.2 sets out the
procedure for the disclosure of information to be considered by reviewers in
the following terms:
- Each party will provide a list of material to be considered by
the recourse reviewer(s) to the Deputy Head’s delegate. This should occur
within five (5) calendar days after the appointment of a reviewer or
review panel;
- The listed information shall be provided to the recourse
reviewer(s). This information should be provided within twenty-five (25)
calendar days after receiving the list;
- The recourse reviewer will distribute the material to each
party. This distribution should take place within five (5) calendar days
following receipt of all of the material by the reviewer;
- An initial list of documents that should be accessible to all
parties is provided in Annex 3; and
- Personal notes taken during all deliberation and/or
decision-making meetings of DSCPC members may be considered evidence for
possible recourse reviews. All such material is to be retained by
individual DSCPC members until the deadline for recourse requests has
passed. After this deadline has passed, all personal notes may be
destroyed.
[23]
In this regard, Dr. Gladman argues that he
should have been given access to, and an opportunity to refute, any prejudicial
information gathered by the Reviewer in the course of his assessment of the
complaint, and this, within 5 calendar days following receipt of the
information by the Reviewer in accordance with subsection 3.4.2(c) of the IRM.
More specifically, Dr. Gladman submits that he should have been provided
with a summary of the substance of the interviews conducted by the Reviewer.
[24]
On this point, Dr. Gladman contends that the
principles of procedural fairness were breached when the Reviewer failed to disclose
to him that he found out during his interview with Mr. Tremblay that Mr.
Tremblay decided not to endorse Dr. Gladman’s request for a promotion after
participating in the Committee’s discussion. He claims that Mr. Tremblay’s
change of position was extremely significant since Mr. Tremblay had initially
supported his application and had played a role in drafting his PER. In
particular, Mr. Tremblay asked Dr. Gladman to cut down his notes in support of
his application to a single page. Moreover, Dr. Gladman argues that he relied
on Mr. Tremblay to make his case for a promotion since he could not make the
case for himself. He submits that this breach prevented him from knowing the
case against him and from having the opportunity to meet it.
[25]
In my view, a plain reading of section 3.4.2 of
the IRM suggests that the information considered in this section concerns materials
that were in existence prior to the appointment of the Reviewer, that is, at
the outset of the IRM process. Contrary to Dr. Gladman’s submissions, this
section does not provide for the disclosure of the interviews conducted by the
Reviewer during the course of his review.
[26]
Despite the IRM being silent on this point, I am
of the view that no such obligation exists in common law either. The nature of
the decision to promote an individual was recently described in the following terms
by the Federal Court of Appeal in Canada (Attorney General) v Boogaard, 2015
FCA 150 [Boogaard]:
[50] […] the personal importance of the
decision to the affected individual must be viewed objectively and in context,
especially in light of the nature of the decision under review. The nature of
the decision is an important factor in assessing the intensity of review and,
thus, deserves much attention in the analysis.
[51] While in this case the promotion is of
great importance to the respondent, normally we do not think of people having a
"right" to a promotion. Often in promotion decisions, only a few win,
many more lose, and the difference between winning and losing can legitimately
turn upon fine things, sometimes subjective or subtle things. For example,
usually we describe people who have been promoted as "deserving" or
"lucky." We do not say that people have been promoted because the
employer was legally forced to do it.
[27]
There is therefore no inherent right to a
promotion. Under the DS Salary System, the Committee is responsible for all
decisions pertaining to promotions. Decisions to promote are made by assessing
an employee’s state of professional development against the performance
indicators established for each DS level. Yet, the final decision to grant or
deny a promotion is reached by consensus through discussion or, where
necessary, by a majority vote. Promotion decisions are “complex, multifaceted decision involving sensitive weighings
of information, impressions and indications using criteria that may shift and
be weighed differently from time to time depending upon the changing and
evolving needs and priorities of the organization” (Boogaard, at
para 52). Thus, in my view, while it can only promote an individual if he or
she has met the DS level being sought, the Committee still retains some discretion
when rendering decisions.
[28]
Moreover, and more importantly, the process
chosen to review the Committee’s decision not to promote is non-adversarial in
nature and the legislative framework does not create an expectation that if
each DS level is met, the individual will automatically receive a promotion.
[29]
The IRM states that “[t]he
principles of natural justice should apply to the process used for all
applications for recourse submitted by researchers. These principles include,
among others, the right to procedural fairness, including: the right to be
heard, the right to representation, and the right to ask questions and
contradict evidence” (IRM, section 2.1).
[30]
Dr. Gladman claims that section 2.1 of the IRM
heightens the extent of procedural fairness required for the IRM process. I
disagree.
[31]
I read section 2.1 to mean that the Reviewer
must adhere to the principles of natural justice found in common law while
carrying out his or her task, which, as we have seen, is largely dependant, in
light of the Baker factors, on the circumstances of each case. I do not
believe that this provision of the IRM was intended to fetter a reviewer’s
discretion to choose the process to follow while considering a complaint.
[32]
Therefore, I am of the opinion that the duty of
procedural fairness owed to Dr. Gladman by the Reviewer was at the low end of
the spectrum. This is altogether consistent with past decisions rendered by
this Court and the Federal Court of Appeal, which have found that applicants
are entitled to a minimum level of fairness where a promotion or a change in
classification is concerned (see Begin v Canada (Attorney General), 2009
FC 634, at para 9 [Begin]; Chong v Canada (Attorney General), 170
DLR (4th) 641, at para 12, 162 FTR 85 [Chong]).
[33]
This minimum level of fairness was expressed in
the following terms in Hale v Canada (Treasury Board), 63 ACWS (3d) 464,
112 FTR 216, with respect to the extent a review committee must disclose
evidence to an individual grieving a classification decision:
[20] […] when the committee decides to
review an aspect of the classification assessment, which the employee did not
think was in dispute, and decides to elicit and rely on evidence with respect
thereto about which the employee had no notice or information, fairness
requires that that information be disclosed to the employee and he be given an
opportunity to comment thereon.
[34]
In Begin, the Court found, in the context
of a classification grievance, that the principles of fairness are respected
where “the complainants had the opportunity to make
their arguments relating to the classification of their positions and to be
heard, and if there was no restriction on their participation” (at para
9). The Court also found that generally there is no right to reply so long as
no new facts are raised (Begin, at paras 18-21).
[35]
In my view, such a minimum level of fairness
does not include the right to summaries of interviews conducted by the Reviewer.
While Mr. Tremblay’s change in position is certainly new information, it cannot
be said that Dr. Gladman was unaware of the importance of Mr. Tremblay’s role
in drafting the PER. Dr. Gladman made submissions to the Reviewer regarding
management having “the “pen” on writing the PER”
and that he had provided much more evidence than appeared in the PER submitted
to the Committee. The Reviewer reviewed Dr. Gladman’s contention that important
information was excluded from his 2015 PER, which allegedly negatively
affected his application for promotion and found that a comparison of the draft
submitted by the Applicant and the final version approved by Mr. Tremblay
revealed mostly minor differences. Further to a review of the record, I agree
with the Reviewer’s assessment of Dr. Gladman’s PER. Moreover, as the Reviewer
noted, Dr. Gladman signed the PER without opting to add any comments to the
document if he believed that key information was missing.
[36]
There is also no merit to Dr. Gladman’s argument
that he needed a summary of the interviews conducted by the Reviewer in order
to “know” the case against him given the fact
that he is the one alleging misconduct on the part of the Committee. There was therefore
no case for Dr. Gladman to meet other than to satisfy the Reviewer that the
Committee’s process was flawed on the grounds set out in the IRM process, of
which he was – or was expected to be - well aware. In this regard, Dr. Gladman
was provided with the opportunity to provide submissions to the Reviewer in
writing and during an hour-long interview. I find that in these circumstances, Dr.
Gladman had an adequate opportunity to establish his allegations, including the
allegation that he relied on his managers, including Mr. Tremblay, in the
drafting of his PER.
[37]
I believe it is worth reiterating that the IRM process
is not an adjudicative or adversarial process where the rights of the person
concerned depend on his or her ability to rebut evidence adduced against them (Baker,
at para 23; Chong, at paras 39-40). It is a process allowing those
whose promotion request has been denied to have the process used by the
Committee reviewed.
[38]
I now turn to the issue of whether the duty of
fairness owed to Dr. Gladman required that he be given an opportunity to comment
on the Reviewer’s report.
[39]
Dr. Gladman relies on a number of decisions such
as Cardinal v Director of Kent Institution, [1985] 2 S.C.R. 643 [Cardinal];
Syndicat des Employés de Production du Québec et de l'Acadie v Canada
(Canadian Human Rights Commission), [1989] 2 S.C.R. 879 [SEPQA]; Deschênes
v Canada (Attorney General), 2009 FC 1126, 188 ACWS (3d) 1112 [Deschênes],
to argue that there exists an obligation in common law for the Reviewer to
provide him with an opportunity to make submissions to the Deputy Minister
about the Review Panel’s recommendation.
[40]
I find that none of these cases have any
application in the circumstances of the present case. As indicated above, the
nature of the decision in this case warrants a level of procedural fairness
that is at the lower end of the spectrum. The cases cited by Dr. Gladman all
refer to situations having a great impact on an individual’s rights, such as in
the context of the decision to segregate inmates in Cardinal, and
decisions related to discrimination complaints and pay equity in SEPQA and
Deschênes.
[41]
In contrast, the degree of procedural fairness
owed to Dr. Gladman is, in my view, similar to the degree espoused by a recent
decision rendered by the Federal Court of Appeal in Agnaou v Canada
(Attorney General), 2015 FCA 29, [Agnaou]). This decision was
decided in the context of the Deputy Public Sector Integrity Commissioner’s
(DPSIC) decision to refuse to initiate an investigation into the applicant’s
claims that he suffered a reprisal. The applicant in that case alleged that
senior officials refused to appoint him to a position because he had made a
protected disclosure. In that case, the applicant argued that he had a right to
comment on a report prepared by an analyst prior to the DPSIC rendering a
decision. The Court of Appeal held that the applicant did not have the right to
comment on the report since he was aware of the essential conditions that needed
to be met and had been given an opportunity to make representations in this
regard upon filing his complaint and in subsequent exchanges with analysts (Agnaou,
at paras 38-39).
[42]
Given the Federal Court of Appeal’s decision in Agnaou,
I find that the Applicant did not have a right to comment on the Reviewer’s
Report before it was submitted to the Deputy Minister since he was aware of,
and made submissions speaking to, the grounds of recourse.
[43]
Moreover, I am of the view that the Applicant
should not be granted greater participatory rights on the grounds that the
Director of General Workplace Management at DND received a copy of the
Reviewer’s Report before the Deputy Minister did and directed the Reviewer to
clarify his report. As indicated by the Federal Court of Appeal in Agnaou,
so long as the final decision is made by the decision-maker himself and there
is no evidence on record indicating otherwise, “[i]t is
entirely normal and appropriate for administrative decision-makers to use the
services of their staff, including when preparing their reasons” (at
paras 46-47).
[44]
Given the foregoing, I find that no breach of
procedural fairness occurred in this case.
B.
Decision is Reasonable
[45]
Further to a review of the entire record,
including the DND’s DS Salary System framework setting out the promotion
and salary advancement of Defence Scientists, I am of the view that the
Reviewer’s decision was reasonable.
[46]
Part IV of the DS Salary System sets out
guidelines for the promotion and salary advancement of Defence Scientists. These
guidelines (the DS Guidelines) indicate, at paragraph 5, that the
advancement of Defence Scientists requires an assessment of an employee’s state
of professional development, which is compared to seven characteristics describing
the minimum entry requirements for each of the seven DS levels. The seven
characteristics are: Knowledge and Experience; Personal interactions and Communication;
Creativity; Productivity; Impact; Recognition; and Responsibilities. For each
of these characteristics, there are one or more performance indicators. A Defence
Scientist will only advance if he or she has met the entry requirements for the
next higher level.
[47]
A DS-05 position is meant for mature,
experienced officers who have established a recognized reputation and
professional competency and leadership in a complex area of science and defence
technology. Treasury Board’s Defence Scientist Service Group – Pay Plan,
which applies to level DS-01 to DS-07 employees, provides that
employees who wish to be promoted to the DS-05 level must have consistently
demonstrated the ability to work under direction, to generate original and
novel solutions to problems, and to meet scientific and technological
objectives that are defined in broad terms.
[48]
At issue in the present case is whether the
Reviewer reasonably found that the Committee did not base its decision on
grounds other than the career progression criteria in finding that the Committee’s
conclusion that the “Impact” performance
indicator be demonstrated in a multi-year fashion “describe
reasonable expectations for a DS 5 scientist.”
[49]
The description under the “Impact” criterion states that a DS-05 level employee
has met the DS-05 “Impact” performance indicator
where he or she “[h]as made superior impacts on client
policy, equipment, engineering, or operational issued, by exploiting the
application of technology and/or defence scientific analyses” (DS
Guidelines, at para 58).
[50]
Dr. Gladman contends that since the
performance indicator is silent on whether “Impact” should
be assessed on a multi-year fashion, the Committee invented this criterion.
[51]
In Ollevier v Canada (Attorney General),
2008 FC 199, 323 FTR 207 [Ollevier], Justice Dawson, now a judge of the
Federal Court of Appeal, accepted that in the context of promoting Defence
Scientists, selection boards cannot “tamper with the
basic qualifications prescribed by the Department by adding to them or changing
part of them in such a way as to limit the factors which could come into play
in the judging and ranking of the candidates” (Ollevier, at para
32, citing Canada (Attorney General) v Blashford, [1991] 2 FC 44 (FCA),
at para 5, 28 ACWS (3d) 567 [Blashford]). At most, the Committee can
provide a mere reasonable elaboration of the requirements suggested by the
original qualifications (Ollevier, at para 32; Blashford, at para
27).
[52]
In this respect, the Respondent invites the
Court to find that it was open to both the Committee and the Reviewer to find
that assessing “Impact” on a multi-year fashion
was a “reasonable elaboration of the requirements”
for promotion. The Respondent submits that the “Impact”
performance indicator must be read within the broader context of the entire DS
Salary System framework, which repeatedly states that an employee’s
performance is to be reviewed over the course of several years.
[53]
In particular, the Respondent relies on the
following sections of the DS Salary System framework:
Defense Scientific Service Group Salary Administration
System, Introduction
6. Rates of professional development
can change; the rate of professional development of some employees will
significantly increase while for others it may significantly decrease. Such
changes will be reflected in the rate of salary progression received by the
employee. It requires, however, more than one year to demonstrate that a
change in rate of professional development has, in fact, occurred and this
has implications for the administration of the DS Salary System. The
time-frame on the basis of which sufficient evidence will be found to support a
change in salary treatment is normally three years but is occasionally two.
DS Guidelines, Assessing State of Professional Development
21. The evidence required to establish
the State of Professional Development of a DS is normally acquired over
several years […] [A]ssessment of the State of Professional Development of
a DS will involve consideration of evidence provided by multi-year
performance […]. [M]uch of the evidence is often contained in the record of
the past five years.
22. The assessment […] requires
comparison of the evidence of the employee’s performance and accomplishments
over a number of years, with the description of the Performance Indicators
provided for entry into each level of the DS Group.
DS Salary System: Part VI- DS PER Completion
Instructions
Rate of Professional Development
7. […] A change in Rate of
Professional Development is very seldom, if ever, substantiated by performance
demonstrated over a single year […]; it normally requires several years to
demonstrate that this change has occurred.
[…]
Completion of Subsection 3.1 (Period
of Merit Review Evidence)
[…]
22. The length of time (in years) to
be covered by this Subsection will depend on the circumstances at the time of
completion […]. The length of time will be determined by the Professional
Development Manager, in advance of completion of the PER, using the following
considerations as guides:
a. when
promotion is to be considered, the period shall encompass the whole career but
with emphasis on the past 3-5 years;
Emphasis
added.
[54]
In my view, when read as a whole, the DS Salary
System framework expressly indicates on numerous occasions that a change
in a Defence Scientist’s rate of professional development is assessed by
performance demonstrated over more than one year. Moreover, Part VI of the DS
Salary System, which sets out instructions for the completion of PERs, specifically
instructs an employee’s Professional Development Manager, the manager
responsible for assessing evidence of the state of professional development and
recommending career management actions, to consider evidence of the state of
professional development that encompasses a Defence Scientist’s entire career
(with an emphasis on the past 3-5 years) when promotion is to be considered.
[55]
Since the “Impact” performance
indicator is part of the state of professional development assessment, I find
that neither the Reviewer nor the Committee tampered with the basic
qualifications prescribed by DND. The DS Salary System framework clearly calls
on the Committee to evaluate the state of professional development performance
indicators over the course of several years where an employee from the Defence
Scientist classification group requests a promotion at the DS-05 level. As the
Respondent puts it, multi-year performance is built-in throughout the DS Salary
System framework.
[56]
I also note that the “multi-year”
criterion for the “Impact” performance indicator
was applied in Dr. Gladman’s 2014 promotion request where the Committee found
at that time that Dr. Gladman needed to continue his “contributions to achieve a consistent multi-year history of
creativity and superior impacts.” Dr. Gladman’s 2015 PER also
states that he has a “consistent multi-year
high-level of impact.” Moreover, no evidence was put before the Court
that the “multi-year” criterion was applied to
Dr. Gladman’s assessment and not the other cases for promotion.
[57]
There is no doubt that the promotion being
sought by Dr. Gladman is important to him, as it is for anyone else in his
position. However, as the Federal Court of Appeal stated at paragraphs 51 and
52 of Boogaard, there is no right to a promotion per se and
granting a promotion is, as indicated previously, a complex and multifaceted exercise
involving “sensitive
weighings of information, impressions and indications using criteria that may
shift and be weighed differently from time to time depending upon the changing
and evolving needs and priorities of the organization”.
[58]
Bodies, like the Committee, tasked with
assessing whether a promotion should be granted, assume highly specialized
roles and their expertise in this area warrants a high degree of deference from
the Court (Begin, at para 8). Here, I find, when the DS Salary System
framework is considered as a whole, that it was reasonably open to both the
Committee and the Reviewer to conclude that Defence Scientists at the DS-05
level are expected to demonstrate high impact activities in a “sustained multi-year fashion”. This, in my view,
amounts to a “reasonable elaboration of the
requirements” for a promotion at the DS-05 level.
[59]
For these reasons, the judicial review
application is dismissed, with costs to the Respondent to be assessed in
accordance with Column III of the Table to Tariff B of the Federal Courts
Rules, SOR/98-106.
Email this Content