Date: 20121207
Docket: A-489-11
Citation: 2012 FCA 326
CORAM: EVANS
J.A.
GAUTHIER
J.A.
WEBB
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
NEIL SMITH
Respondent
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
This
is an appeal from a decision of the Federal Court (2011 FC 1401 (Smith FC)),
in which Hughes J. (the Application Judge) allowed an application for judicial
review of a decision of the Public Service Staffing Tribunal (PSST) (2010 PSST
0022 (Smith PSST)) dismissing Neil Smith’s (Respondent) complaint for
lack of jurisdiction.
[2]
The
PSST determined that it did not have jurisdiction to deal with the complaint
brought by the Respondent because it did not involve an appointment or a
revocation under the Public Service Employment Act, S.C. 2003, c. 22 (PSEA).
The Application Judge held that this decision was unreasonable.
[3]
For
the reasons that follow, I would allow the appeal.
The Facts
[4]
The
Respondent joined the public service in 2003 as a Canine Officer (PM-02) with
the Canadian Food Inspection Agency (CFIA). At the time, he was assigned to
work with a dog named Bella.
[5]
In
December of that year, the Respondent was transferred to the newly created Canada
Border Services Agency (CBSA) with the same position title and level.
[6]
In
2005, the Respondent’s position was eliminated and dog handling duties were
incorporated into a new Border Services Officer – Customs (BSO) work
description with a one page addendum listing those duties. The BSOs were
classified at the PM-03 level. The Respondent was offered an indeterminate
appointment to a BSO position which he accepted, after receiving an assurance
from the CBSA that he would not have to relinquish his dog handling duties.
[7]
In
January 2007, after a classification conversion exercise, the CBSA completed a
new work description for the BSO position (FB-03) incorporating two specific
references to dog handling duties in the job description.
[8]
From
October 2006 to January 2007, the Respondent went on leave, and another BSO
assumed dog handler duties working with Bella. When the Respondent returned
from leave in January 2007, he assumed other BSO duties at a port of entry. He
resumed dog handler duties in September 2007.
[9]
In
April 2009, Bella was retired. In May 2009, the Respondent received a letter
from the CBSA Chief of Operations indicating that, after the classification
conversion exercise, the CBSA viewed dog handling duties as an assignment to
duties within the BSO work description. The letter announced that CBSA had decided
to rotate the dog handling duties in light of the following considerations:
fair distribution of career opportunities, employee career objectives, service
time as a handler, and the overall experience base within the district.
[10]
Subsequently,
the CBSA posted a bulletin for an “Assignment Opportunity” for a Food, Plant
and Animal Detector Dog Handler position closing in June 2009. It was available
only to indeterminate, designated BSOs (FB-03) in Ottawa, who had to undertake
a two-day detector dog handler pre-selection course and a ten-week training
course with a new dog. The Respondent did not apply as he did not think he
would be considered. One of the seven applicants was selected and assigned to
perform the dog handling duties with a new detector dog.
[11]
The
Respondent presented a complaint to the PSST in June 2009 that there had been
an appointment and/or a revocation pursuant to section 74 and paragraph 77(1)
of the PSEA. He also filed a grievance in respect of the same events.
The final determination of this grievance is in abeyance pending the final
determination of the Respondent’s application for judicial review.
The PSST Decision
[12]
After
a three-day hearing where five witnesses testified, the PSST issued an 11-page
decision setting out the facts underlying the complaint, including those
emphasized by the Respondent at the hearing before us, such as the content of
the poster relating to the detector dog handler assignment opportunity (AB Vol.
II, page 169), and the ten weeks of training required for the successful
candidate (Smith PSST at paragraph
13). The PSST noted the respective positions of the complainant and the CBSA (Smith PSST at paragraphs 17-28),
before dismissing the complaint for want of jurisdiction. It held that, in the
circumstances of this case, the facts did not give rise to either an
appointment or a revocation.
[13]
In
its analysis, the PSST recognized that its decision must be guided by the
three-step approach adopted in Canada v. Brault, [1987] 2 S.C.R. 489 (Brault), and Doré v. Canada,
[1987] 2 S.C.R. 503 (Doré). The key passage with respect to Brault is
paragraph 43 which reads as follows:
Thus, referring back
to the three aspects of the issue, as set out by the Supreme Court in Brault,
no additional functions or duties were created when Ms. Simoneau was given
other existing BSO duties. Addressing the second and third aspects of the test
(i.e., a requirement for additional qualifications and the selection of a
person possessing these qualifications), the Tribunal finds that, in the
circumstances of this case, the training and selection of Ms. Simoneau do not
support a finding that an appointment has occurred. Ms. Simoneau was evaluated
and trained to prepare her to assume duties found in her work description. The
length of the training and the assessments conducted cannot be considered in
isolation from the work description.
[14]
The PSST also distinguished Doré, finding that the BSO who
was trained as a dog handler here was not assigned to an entirely new position,
but to duties within her existing BSO work description (Smith PSST at
paragraphs 44-45).
[15]
The PSST further rejected the proposition that a revocation of the
Respondent’s appointment had occurred. It found there to be “no evidence” that
either the deputy head or the Public Service Commission had revoked the
Respondent’s appointment (Smith PSST at paragraph 51).
The FC Decision
[16]
The
Application Judge found that the PSST’s conclusion that it had no jurisdiction
was unreasonable in light of the principles articulated in Doré and
Brault regarding what constitutes an “appointment”. He held that the Doré
and Brault principles remained relevant, even though they were developed
in relation to an older version of the legislation (Smith FC at
paragraph 31). Quoting from the Supreme Court’s decision in Doré, he
explained that the inquiry must focus on the Department’s objective actions,
rather than its subjective intent or understanding (Smith FC at
paragraph 32). He found that the Tribunal had not taken into account the
Respondent’s perspective, but had considered the matter only from CBSA’s point
of view (Smith FC at paragraph 30).
[17]
Relying
on Baur v. Canada (Attorney General), 2004 FC 725 at paragraph 47, the Application Judge found that
the PSST had erred by
not considering the “totality of circumstances” before it and that its decision
was therefore unreasonable. He concluded at paragraph 35 by saying:
[i]t looked only at one side, the Border
Services side; not at Mr. Smith’s side. In so doing, its decision was
unreasonable. A Tribunal should be balanced and open in accepting jurisdiction.
Jurisdiction is there for a purpose; the Tribunal should accept its mandate and
deal with matters such as the present one.
Analysis
[18]
The
parties agree that the role of an appeal court sitting in review of judicial
review is to determine if the lower court identified the appropriate standard
of review and correctly applied it (Prairie Acid Rain Coalition v. Canada
(Minister of Fisheries and Oceans), 2006 FCA 31 at paragraphs 13-14; Canada
Revenue Agency v. Telfer, 2009 FCA 23 at paragraph 19; Canada (Public
Safety and Emergency Preparedness) v. Shpati, 2011 FCA 286 at paragraph
28).
[19]
The
Respondent confirmed that the question in this case was whether the PSST had
properly applied the legal test it identified to the facts of the case. Thus,
the Application Judge has identified reasonableness as the proper standard ((Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraphs 30-33 (Alberta
Teachers’); Canada (Attorney General) v. Kane, 2012 SCC 64 (Kane)).
[20]
The
issue in dispute is whether the Application Judge correctly applied the
reasonableness standard by holding that the PSST erred by distinguishing Doré
and Brault and by not considering the Respondent’s perspective. In
my view, the PSST decision is not unreasonable. I note, however, that the
Application Judge did not have the benefit of the Supreme Court of Canada’s
guidance in Alberta Teachers’, above, Newfoundland
and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, and even more recently in Kane, above, and Construction Labour Relations v.
Driver Iron Inc.,
2012 SCC 65, when he
wrote his decision.
[21]
Focusing on
specific items of evidence, the Respondent argued that the PSST’s conclusion could not fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 47.)
[22]
However,
in my view, the PSST clearly considered the relevant case-law and weighed the
appropriate factors. It did not say that whenever a duty or function is already
part of a work description, the Brault test cannot be met; it instead
limited its decision to the circumstances before it.
[23]
In
Brault, Justice Le Dain for the Supreme Court of Canada introduced the
issue before the Court at paragraph 1 as, “…whether the creation of
additional functions or duties in a position in the Public Service of Canada, calling for additional qualifications and the selection of a person possessing
such qualifications, amounts to the creation of a new position…” (my emphasis).
[24]
Therefore,
since the work description of a BSO included the dog handling duty essentially
since 2005, it was, in my view, reasonably open to the PSST to distinguish the
facts before it from those in Brault. As already mentioned, the newly
trained person and the Respondent worked as BSOs for a number of years prior to
the filing of the present complaint. The Respondent performed his BSO duties
without dog handling for a significant period of time in 2007 and another BSO
performed the dog handling duties with the same dog during the Respondent’s leave.
Thus, although the PSST’s distinction may appear to some to be too formalistic,
I simply cannot see how it can fall outside the range of acceptable outcomes.
[25]
Further,
I am not satisfied on the basis of the PSST’s reasons that it failed to
consider all the relevant circumstances including Mr. Smith’s perspective.
[26]
I
agree with the Appellant that whether there has been an appointment or
revocation “could be the subject of reasonable disagreement by reasonable
people” (Kane at paragraph 10).
[27]
Accordingly,
I would allow the appeal and set aside the Federal Court decision. I would not
grant costs in this Court and below.
“Johanne Gauthier”
“I
agree
John
H. Evans J.A.”
“
I agree
Wyman
W. Webb J.A.”
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