Docket: T-1988-15
Citation:
2016 FC 1089
Ottawa, Ontario, September 27, 2016
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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MURLIDHAR GUPTA
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Murlindhar Gupta is a scientist employed by
Natural Resources Canada [NRCan]. He has brought an application for judicial
review of a decision of the Deputy Minister of Natural Resources [Deputy
Minister] to deny his request for recourse in respect of his applications for
promotion under the Career Progression Process.
[2]
For the reasons that follow, I find that the
Deputy Minister failed to consider relevant factors, specifically the
involuntary change in Dr. Gupta’s research focus and his extended leave of absence,
and also failed to consider whether Dr. Gupta’s management accomplishments were
properly evaluated. The application for judicial review is therefore allowed.
II.
Background
[3]
Dr. Gupta joined NRCan as a visiting research
fellow with the Clean Electric Power Division, and became a research scientist
in 2004. From 2002 to 2009, the focus of Dr. Gupta’s research was the
development of low-emission clean coal and carbon capture.
[4]
Dr. Gupta alleges that he was subject to various
forms of harassment and other inappropriate behaviour by his supervisors. In a
grievance decision dated October 30, 2008, the Assistant Deputy Minister,
Energy Technology and Programs Sector, acknowledged that the actions of his supervisor
had caused Dr. Gupta to lose “professional traction”.
Following a leave of absence from 2009 to 2010, he was involuntarily reassigned
to an area of research outside his expertise. He grieved the reassignment. The
settlement of the grievance resulted in a Memorandum of Agreement dated October
30, 2012 [MOA].
[5]
The MOA was primarily concerned with Dr. Gupta’s
prospects for promotion. It permitted him to apply for promotion outside of the
usual Career Progression Process.
[6]
Like many scientists employed within the Public
Service of Canada, Dr. Gupta is subject to an “incumbent-based”
promotion process governed by s 22(2) of the Public Service Employment Act,
SC 2003, c 22 and s 2 of the Public Service Employment Regulations,
SOR/2005-334. Promotion is based on an assessment of the work performed by the
individual scientist – the “incumbent” who
occupies a position. Scientists are promoted in accordance with the increase in
the quality or quantity of their work, and are compensated accordingly.
[7]
Pursuant to the Handbook to NRCan’s
Application of the “RE Framework” [Handbook], research scientists submit
annual dossiers of their work to a Career Progression Committee [CPC]. The CPC
then determines whether the candidate should be promoted based on specified
criteria.
[8]
In addition to the specified criteria, a
candidate may choose to bring other factors to the attention of the CPC. The
pertinent section of the Handbook reads as follows:
Note: This
is one area where most candidates do NOT need to fill in.
The relevant factors – if a candidate has
any – may include:
• […]
• any major
change in circumstances which affected cited achievements/contributions;
• […]
• extended leave
of absences interrupting a continuous scientific career (e.g., parental leave);
• […]
This section is not to be used as a
summary of the application being presented. When
appropriate (as described above), the researcher may present historical or
background information, in approximately 400 words, which will help the
reader to have a better understanding of the documentation. If no information
is required, write “No relevant factors to highlight” in this section.
[emphasis original]
[9]
If a candidate is not satisfied with the CPC’s
assessment of his or her dossier, the candidate has access to an Internal Recourse
Mechanism [IRM]. The IRM panel conducts a review of the CPC’s evaluation of the
candidate’s dossier. The IRM panel then provides a recommendation to the Deputy
Minister, who is the final decision-maker on whether the process followed by
the CPC was fair.
[10]
The IRM panel may recommend that the Deputy Minister
appoint a new CPC to re-evaluate a candidate’s dossier only in certain
circumstances. These include an “abuse of authority”
on the part of the CPC. Pursuant to the IRM policy, an “abuse
of authority” arises when, among other things, “a
delegate acts on inadequate material (including where there is no evidence or
without considering relevant matters)”. The IRM policy provides the
following explanatory note:
Abuse of authority
is more than simply errors or omissions; however, when a delegate acts on inadequate
material and/or takes action [sic] which are, for example, unreasonable
or discriminatory, these actions may constitute such serious errors and/or
important omissions to amount to abuse of authority even if unintentional.
[11]
Dr. Gupta submitted his dossier in accordance
with the modified procedure contemplated by the MOA. The MOA provided that the
CPC review would be completed within four weeks, but after eleven months it was
still ongoing. Dr. Gupta also submitted his dossier in accordance with the usual
career progression process. Both processes denied Dr. Gupta’s requests for
promotion, and he sought recourse in accordance with the IRM.
[12]
The IRM panel confirmed the CPC’s decisions to
refuse Dr. Gupta’s requests for promotion. He therefore sought judicial review
of the decisions in this Court. NRCan conceded that the processes were
deficient. The applications were discontinued on the understanding that Dr.
Gupta’s dossier would be considered by a newly-constituted CPC, and the result
would be made retroactive to September 30, 2011.
[13]
On April 30, 2014, the newly-constituted CPC
declined to grant Dr. Gupta’s request for promotion. Dr. Gupta again initiated
the IRM, alleging that the CPC’s process was tainted by abuse of authority;
specifically, a failure to consider his extended leave of absence and the
involuntary change in his research focus.
[14]
The IRM panel summarized Dr. Gupta’s complaints
as follows:
The claimant, Dr.
Gupta, alleges that the [CPC] findings for his cases were flawed because:
1. Abuses of authority must be considered for his case in
that:
a. He was commanded to drastically change research focus during
the promotion review period.
b. The CPC did not properly apply the career progression criteria
for RES 3, imported requirements that are not supported by the Handbook to
NRCan’s Application of the RE Framework, September 2013 (the Handbook), and
acted on inadequate materials.
c. The CPC based its decisions on grounds other than the published
career progression criteria.
d. The CPC does not consider student employees to be employees for
the purposes of judging management criteria.
e. The CPC ignored the claimant’s roles in hiring a permanent
employee in evaluating management criteria.
f. The CPC failed to accept evidence provided of the claimant’s
contributions to supporting the management of a program.
2. The CPC acted in bad faith in that:
a. The addition of two-years of evidence to the previous promotion
request was considered to still provide “insufficient evidence” for some
evaluations.
b. The CPC evaluation report frequently concludes that the
applicant has provided insufficient evidence but does not state why the
evidence was insufficient for the requested promotion.
3. The review process yields inconsistent findings from year
to year.
[15]
Dr. Gupta requested an opportunity to make
submissions regarding the IRM panel’s draft report before it was finalized. The
IRM panel refused. Once he received the IRM panel’s report, Dr. Gupta prepared
written submissions. These were forwarded to the Deputy Minister together with
the IRM panel’s report. The IRM panel informed the Deputy Minister that Dr.
Gupta’s submissions did not alter its views. On October 30, 2015, the Deputy
Minister accepted the IRM panel’s recommendations and closed the file.
III.
Decision under Review
[16]
The Deputy Minister accepted the IRM panel’s
conclusion that Dr. Gupta’s dossier had been evaluated objectively and
consistently with those of other applicants, and that there was no abuse of
authority or lack of good faith.
[17]
Where the Deputy Minister adopts the reasons
provided by the IRM panel, the panel’s report forms a part of the decision (Gultepe
v Canada (Attorney General), 2015 FC 645 at para 10; Gladman v Canada
(Attorney General), 2016 FC 917 at para 17 [Gladman]). The IRM panel
concluded as follows:
1. The
evaluation process applied to Dr. Gupta’s promotion application case was
consistent across all applicants and followed the evaluation requirements
contained in the Handbook […].
2. There
is no evidence of abuse of authority or lack of good faith in the evaluation of
Dr. Gupta’s case.
3. From
the evidence gathered, the review committee is convinced that the CPC was able
to assess the dossier objectively, and the fact that there was clear consensus
on the unsuitability for promotion argues that the failure to achieve the
RES-03 did not come about as a result of bias or procedural errors.
[18]
The IRM panel found that the change in Dr.
Gupta’s research focus was a “management and not a
promotion action”, and was not relevant to its review. The IRM panel
observed that the change appeared to have been “a
remedy for a historical abuse of management authority.”
IV.
Issues
[19]
This application for judicial review raises the
following issues:
A. Was the Deputy Minister’s decision procedurally fair?
B. Was the Deputy Minister’s decision reasonable?
V.
Analysis
[20]
Questions of procedural fairness are subject to
review by this Court against the standard of correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Gladman at
para 16).
[21]
A Deputy Minister’s decision regarding the
fairness of an IRM process is a question of mixed fact and law, and is subject
to review against the standard of reasonableness (Rabbath v. Canada
(Attorney General), 2014 FC 999 at para 31; Gladman at para 16). The
Court will intervene only if the decision falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47).
A.
Was the Deputy Minister’s decision procedurally
fair?
[22]
In Gladman, Justice LeBlanc found that
the level of procedural fairness owed to an employee by an IRM panel is at the
lower end of the spectrum. A complainant is not entitled to receive summaries
of the reviewer’s interviews or a copy of the draft report before it is
finalized. Counsel for Dr. Gupta noted that the decision is under appeal, but
did not otherwise address it in argument.
[23]
Dr. Gupta was afforded a higher level of
procedural fairness than the applicant in Gladman. He was given an
opportunity to comment on the IRM panel’s interview notes, and his written
submissions on the IRM panel’s report were forwarded to the Deputy Minister for
his consideration. In light of Gladman, and subject to further guidance
from the Federal Court of Appeal, I am unable to find a breach of procedural
fairness in this case.
B.
Was the Deputy Minister’s decision reasonable?
[24]
The IRM panel found that the change in Dr.
Gupta’s research focus was a “remedy for a historical
abuse of management authority”, and was not relevant to its review. The
CPC’s evaluation report recognized that Dr. Gupta was “required
to reorient his research from Clean Electric Power Generation to bioenergy
research in 2010”, but provided no further analysis. Neither the IRM
panel nor the CPC addressed Dr. Gupta’s extended leave of absence.
[25]
Dr. Gupta argues that the change in his research
focus was an aspect of the harassment he suffered at NRCan, not a remedy. He
notes that the Handbook specifically requires the CPC to consider “any major change in circumstances which affected cited
achievements/contributions” and any “extended
leave of absences interrupting a continuous scientific career” if the
candidate requests that these be taken into account. Dr. Gupta identified both
of these factors in his submissions to the CPC, and also in his submissions to
the IRM panel.
[26]
The IRM policy defines “abuse
of process” to include a failure to consider relevant matters. Neither
the CPC nor the IRM panel properly considered the circumstances that gave rise
to Dr. Gupta’s change in research focus, nor the impact this may have had on
the quantity or quality of his work. Nor did they consider his extended leave
of absence.
[27]
According to the Respondent, “[e]ven if the CPC agreed with the Applicant that his
reassignment to a different group was unfair, it could not have promoted him on
this basis. Doing so would have fallen outside its mandate.” I disagree.
The Handbook specifically identifies major changes in circumstances and leaves
of absences as relevant factors when a candidate requests that they be
considered for promotion. Given Dr. Gupta’s submissions, the CPC was obliged to
address these factors in its decision. It failed to do so. In my view, it was
unreasonable for the IRM panel to disregard this evident flaw in the CPC’s treatment
of Dr. Gupta’s application for promotion.
[28]
There is another troublesome aspect of the IRM
panel’s decision. The IRM panel dealt with Dr. Gupta’s complaint that the CPC
had improperly evaluated his management accomplishments as follows:
The CDC [sic]
evaluation report is silent on the point raised here. This could be either an
inadvertent or an intentional omission. Evidence inferred from the interviews
suggests that this evidence was considered by the CDC [sic] but was not
judged to be adequate to support promotion. This allegation could have
substance.
[emphasis added]
[29]
In its “conclusions and
recommendations”, the IRM panel stated that “[t]here
is no evidence of abuse of authority or lack of good faith in the evaluation of
Dr. Gupta’s case.” The Deputy Minister confirmed that, in his view, “there was no abuse of authority or lack of good faith.”
[30]
I cannot reconcile the IRM panel’s finding that
Dr. Gupta’s complaint regarding the CPC’s evaluation of his management
accomplishment “could have substance” with its
conclusion that there was “no evidence of abuse of
authority”. The IRM panel offered no analysis of this issue. In this
further respect, the IRM panel’s report and Deputy Minister’s decision are
unreasonable.
[31]
I am unable to say whether the Deputy Minister’s
decision would have been the same if he and the IRM panel had considered the “relevant factors” prescribed by the Handbook, specifically
Dr. Gupta’s involuntary change in research focus and his extended leave of
absence. There is also an unresolved question of whether the CPC properly
evaluated Dr. Gupta’s management accomplishments. The matter must therefore be
returned to the Deputy Minister for reconsideration.
VI.
Conclusion
[32]
The application for judicial review is allowed.
The parties agreed that the successful party would be entitled to costs in the
lump sum of $3,250.00.
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