Date: 20110308
Docket: A-205-10
Citation: 2011 FCA 84
CORAM: SHARLOW
J.A.
TRUDEL J.A.
MAINVILLE
J.A.
BETWEEN:
SHELLEY APPLEBY-OSTROFF
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
This is an
appeal from a judgment of the Federal Court reported as 2010 FC 479 (“Reasons”)
which dismissed the appellant’s judicial review application seeking to set
aside a decision of the Chair of the Canadian Transportation Agency (“CTA”)
rejecting the grievance she submitted following the termination of her position
as assistant general counsel and director of the legal services directorate of
the CTA.
[2]
The
fundamental argument raised by the appellant in her grievance, before the
Federal Court, and now in this appeal, is that the working conditions which
apply to her are set out in the Work Force Adjustment Directive (“WFA
directive”) rather than in the Executive Employment Transition Policy (“EET
policy” or “EETP”).
[3]
Though
recognizing that Treasury Board policy documents indicate that the EET policy is
no longer in effect, the respondent asserts that the Treasury Board adopted a
transition measure under which the EET policy was made to apply to the
appellant. However, the respondent has not produced a copy of this Treasury
Board decision, claiming that cabinet confidence impedes it from doing so. Yet
no certification under section 39 of the Canada Evidence Act, R.S.C.
1985, c. C-5 has been submitted to justify the cabinet confidence claim. The
respondent nevertheless argues that it is under no obligation to provide a copy
of the Treasury Board decision adopting the transition measure, and that it can
rather rely on an affidavit from a Treasury Board employee.
[4]
As further
set out below, the respondent’s position is contrary to the applicable
provisions of the Canada Evidence Act and to principles of
administrative law governing government decisions affecting individual rights.
Consequently, in light of the unusual circumstances of this case, the appeal
will be allowed and the matter will be returned to the Chair of the CTA for a
fresh determination of the grievance on the basis of the WFA directive.
Background and context
[5]
The
appellant was employed by the CTA for approximately 18 years, and she last
occupied a senior position classified at the LA-3A level. Her position was not
part of a collective bargaining unit, and her working conditions were not
subject to a binding collective agreement. There is no evidence in the record
of any misconduct by the appellant or dissatisfaction with her work performance.
Rather, following a report from an external consulting firm, it was recommended
that her position be abolished as part of a corporate reorganization. The CTA
decided to act on this recommendation.
[6]
As the
applications judge found, the appellant’s treatment following the decision to
abolish her position “was not handled very smoothly” (Reasons at para. 76). On
October 15, 2008, the appellant was informed by letter that her position was
“surplus to requirements due to the discontinuance of your function, effective
at the close of business on April 15, 2009” (Appeal Record at p. 66). It was
later determined that the April 15, 2009 effective date of surplus was in
error, and that the appellant’s position was in fact to be declared in surplus
as of November 5, 2008, or 21 days after receipt of the initial letter
notifying her of the decision.
[7]
In
addition, the October 15, 2008 letter attached the EET policy and set out
various options available to the appellant under that policy. Yet the attached
EET policy document contained at the outset the following notice: “Notice to
the reader: This document is no longer in effect. It has been archived
online and is kept for historical purposes” (Appeal Record at p. 68).
[8]
Exchanges
ensued between the appellant and officials of the CTA and of Treasury Board
concerning the various options available to her. The appellant sought an
extension of time to consider her options, but this was denied. These exchanges
culminated on November 5, 2008 with a written ultimatum from the employer
instructing the appellant to choose within a few hours one of the options
offered under the EET policy (Appeal Record at p. 90):
Therefore, consistent with the EETP,
please be advised that if by close of business day, on Wednesday November 5,
2008, you have not waived option 1, you will be considered having accepted to
be redeployed in the Public Service and you will no longer be entitled to
Option 2 or 3 as described in the letter of October, 15, 2008.
[9]
It should
be noted that under option 1 of the EET policy, the appellant was being offered
six months (until April 15, 2009) to seek continuing employment in the core
public administration, followed by a lay off “with no other benefits under this
Policy” should she be unsuccessful in her relocation efforts (Appeal Record at
p. 66). Options 2 and 3 concerned individual compensation settlements requiring
a resignation from the public service and a waiver of priority referral rights.
[10]
The
appellant answered the November 5, 2008 written ultimatum that same day by
waiving option 1 on a without prejudice basis (Appeal Record at p. 93):
This is to advise that I waive option 1
set out in your letter to me of October 15, 2008. Nothing in this e-mail
communication is to be taken as a waiver of any of my rights, including,
without limitation, my grievance rights. Nor is it to be taken as an
acceptance, express or implied, of the unilateral deadline imposed in your
October 15th letter. This communication is being sent on a
completely without prejudice basis.
[11]
On November
7, 2008, the appellant was locked out of her office and a letter was issued to
her that day advising her that she had “resigned from the Public Service on
November 5, 2008.” So ended the appellant’s eighteen year career with the CTA.
[12]
The
appellant sought legal advice and filed a grievance pursuant to section 208 of
the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2,
submitting that the WFA directive applied to her rather than the rescinded EET
policy. Under the WFA directive, the appellant would be entitled to additional
guarantees and benefits not provided under the EET policy, notably a guarantee
of a reasonable job offer, failing which she would be entitled to a 120-day
window to consider alternative options, including the option of a twelve month
surplus priority period in which to secure a reasonable job offer.
The grievance decision
[13]
In a
letter-decision dated February 6, 2009, the Chair of the CTA denied the
grievance. The Chair relied entirely on the advice provided by Treasury Board
analysts and employees of the Canada Public Service Agency, and did not carry
out any independent legal research or analysis in order to ascertain which
working conditions applied to the appellant. Based on this advice, he concluded
that the EET policy applied to the appellant as a “transition measure” (Appeal
Record at pp. 208 to 210).
The Federal Court proceedings
[14]
The
appellant challenged this grievance adjudication decision through a judicial
review application before the Federal Court. The respondent chose not to submit
a copy of the Treasury Board decision allegedly extending on a transition basis
the application of the EET policy to the appellant’s position. The respondent
rather relied on an affidavit from Mr. Marc Thibodeau, a Director, Collective
Bargaining, with the Treasury Board. In his affidavit, Mr. Thibodeau affirmed
that the “Notice to the reader” on the published EET policy notifying that this
policy was no longer in effect was “incomplete”. Mr. Thibodeau added that “the
Treasury Board’s decision extended the EETP during the period for which the LA
group negotiated its first collective agreement, a process that is ongoing at
the time of the swearing of this affidavit. As a result, the EETP continues to
apply to employees in the LA group who are classified at the LA-3A level and
above.” (Appeal Record at pp. 959-60).
[15]
When
pressed to provide an authoritative copy of this alleged Treasury Board
decision, the attorney representing the respondent refused to do so on the
basis of an alleged cabinet confidence. The following exchange between opposing
counsel during the cross-examination of Mr. Thibodeau on his affidavit is
instructive (Appeal Record at pp 225-226):
Q. [MR. BROWN appellant’s counsel]: You
are telling me that, but you can’t today show me or point me to any Treasury
Board decision or any published document on the website that indicates that?
MR. FADER [respondent’s counsel]: Just to
step in - - The Treasury Board document itself is a Cabinet confidence.
Unfortunately, we cannot release the actual Decision.
MR. BROWN: So the answer to my question
is no, you cannot point me to a specific decision or a specific document.
MR. FADER: There is a distinction between
what exists and not being able to provide it to you or summarize its contents
because of Cabinet confidence. It is a Cabinet confidence. That is the position
we are taking – that the Treasury Board Decision itself which is described a
little bit in Mr. Thibodeau’s Affidavit of both the Decision, Decision letter
and its contents are Cabinet confidence thereby engaging Section 39 of the
Canada Evidence Act.
[16]
Yet no
certification under section 39 of the Canada Evidence Act was at any
time submitted to the Federal Court.
[17]
The
applications judge nevertheless found that the evidentiary burden was on the
appellant to prove that the EET policy was not part of her terms of employment
even though the published version of that policy indicated it was no longer in
effect (Reasons at paras. 62 and 73). The applications judge also found that the
Treasury Board was under no obligation to “make available its policies”
(Reasons at para. 67), was not bound by the policies it posts on the internet
(Reasons at para. 68), need not publish and make available the terms and
conditions of the appellant’s working conditions (Reasons at para. 71), and
that the affidavit evidence of Mr. Thibodeau supported the notion that the EET
policy applied to the appellant (Reasons at para. 69).
[18]
The
applications judge found that once the respondent had informed the appellant of
the working conditions which applied to her, it had discharged its burden and
was under no further obligation to provide authoritative evidence of the
Treasury Board decision extending the EET policy to the appellant. It was
rather the appellant who had the burden of disproving the respondent’s bald
assertions concerning the applicable working conditions, and in this case,
“[o]ther than the website which was never relied on by the applicant, there is
no evidence that the Treasury Board did not intend the EET policy to apply”
(Reasons at para. 70). Consequently, the appellant had “not brought forth
enough evidence to demonstrate that the CTA Chair was incorrect when he
affirmed that the EET policy did apply to the applicant” (Reasons at para. 73).
The application for judicial review was consequently dismissed.
The issue in appeal
[19]
Though the
appellant has set out nine grounds of appeal, they all relate in varying
degrees to one central question: did the applications judge err in finding that
the Chair of the CTA correctly determined that the EET policy applied to the
appellant? For the reasons further set out below, and in light of the record
before me, I answer “yes” to this question.
The Standard of Review
[20]
In appeal of a judgment concerning a judicial review application,
the role of this Court is to determine whether the applications judge
identified and applied the correct standard of review, and in the event he has
not, to assess the impugned decision in light of the correct standard of
review; the applications judge’s selection of the appropriate standard of
review is a question of law subject to review on appeal on the standard of
correctness: Dr. Q. v. College of Physicians and Surgeons of British
Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paragraph 43; Mugesera v.
Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2
S.C.R. 100 at paragraph 35; Prairie Acid Rain Coalition v. Canada (Minister
of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610 at paragraphs
13-14.
[21]
Both the
appellant and the respondent agree in their respective memoranda of fact and
law that the applicable standard is correctness. The applications judge also
found that the applicable standard of review in this case is that of
correctness. I agree, substantially for the reasons stated by the applications
judge at paragraphs 30 to 56 of his Reasons.
[22]
In this
case, the issue is the identification of the working conditions which apply to
the appellant, either the EET policy or the WFA directive. This is an issue of
law falling outside the expertise of the Chair of the CTA acting as a grievance
adjudicator under sections 207 and 208 of the Public Service Labour
Relations Act. In this case, the Chair of the CTA recognized that he had no
expertise to ascertain the applicable working conditions and he therefore
relied entirely on the advice of employees of the Treasury Board and of the
Canada Public Service Agency to reach his decision. In such circumstances, no
deference is owed to the grievance adjudicator.
[23]
Moreover,
the grievance adjudicator in this case is not an independent adjudicator, but
rather a senior representative of the employer. Deference on questions of law
in the circumstances raised in this appeal should not be extended to a person
who is not independent from the employer: Canada (Attorney General) v. Assh, 2006 FCA 358, 2007 4 F.C.R.
46 at paras. 50 to 52.
Analysis
[24]
It is not
disputed that the publicly available working conditions documents indicate that
the EET policy “is no longer in effect.” This is clearly set out in the
publicly available version of this policy (Appeal Record p. 68) as well as in
the publicly available Policy on the Management of Executives which took
effect on July 16, 2007 and which clearly states in section 1.2 that it replaces
the EET policy as of that date (Appeal Book at p. 132). The publicly available Directive
on Career Transition for Executives issued under the authority of the
Treasury Board of Canada Secretariat effective as of July 16, 2007 also states
that it replaces the EET policy as of that date (Appeal Record p. 119).
[25]
This new
policy and new directive apply as of July 16, 2007 to various executive groups
of the core public administration, but not to the excluded members of the Law
group, including those at level LA-3A, which had been previously covered by the
EET policy. The record shows that most of the employees of the LA group were
then in the process of negotiating a first collective agreement, and that the
existing working conditions thus continued to apply to those LAs covered by the
bargaining unit pursuant to the operation of section 107 of the Public
Service Labour Relations Act.
[26]
It is not
disputed that the appellant is not a member of the LA group covered by the LA
bargaining unit. It is moreover agreed that she was an excluded member of the
Law group level LA-3A who was appointed to her position on an indeterminate
basis. It is also not disputed that the WFA directive applies to those
employees who are appointed on an indeterminate basis and who are excluded or
unrepresented, and to whom the EET policy or another directive on work force
adjustment does not apply. This result flows from the clear provisions of the
WFA directive concerning the scope of its application (Appeal Record at p.
144).
[27]
However,
the respondent asserts that a decision of the Treasury Board extended the EET
policy to the appellant, thus excluding the operation of the WFA directive. The
grievance adjudication decision of the Chair of the CTA dated February 6, 2009
sets out the respondent’s position as follows (Appeal Record at p. 44):
The officials provided clarification
regarding the application of the policy in light of the notice on the
electronic version that the EETP document is no longer in effect and has been
archived online. This was explained as a transition measure to ensure that
excluded LAs continue to be covered by their existing Terms and Conditions of
employment while the first LA collective agreement is negotiated. For this
reason, the Workforce Adjustment Directive (WFAD) referenced in the grievance
does not apply to Ms. Appleby-Ostroff. [Emphasis added]
[28]
Though no
mention is made here of a Treasury Board decision formally adopting such a
transition measure, the respondent later took the position that a Treasury
Board decision had indeed been adopted for this purpose, but that it was a
“secret” decision subject to cabinet confidence.
[29]
The
applications judge found that notwithstanding the terms of the publicly
available working conditions documents stating the contrary, and
notwithstanding the refusal of the respondent to submit an authoritative
version of the Treasury Board decision extending the EET policy to the
appellant as a transition measure, it was nevertheless incumbent on the
appellant to prove that the EET policy did not apply to her. I respectfully
disagree.
[30]
Pursuant
to paragraph 7(1)(e) of the Financial Administration Act, R.S.C. 1985,
c. F-11, the Treasury Board may determine the terms and conditions of
employment of persons employed in the federal public administration. In the
exercise of these responsibilities, the Treasury Board is extended considerable
authority under subsection 11.1(1) of the Financial Administration Act,
including the authority to provide for terms and conditions of employment that
it considers necessary for effective human resources management in the public
service. In the absence of specific legislation to the contrary, because these
terms and conditions of employment established by the Treasury Board become
part of the employee’s contract of employment, it would be inconsistent with
principles of fairness and good faith to empower the Treasury Board to
determine these terms and conditions without disclosing them to the concerned
employee, particularly in the event of a dispute as to the scope of their
application.
[31]
Here, the
respondent asserts that these terms and conditions were disclosed to the
appellant with the letter of October 15, 2008 informing her of the
discontinuance of her functions, and that consequently her appeal must fail.
The applications judge agreed with this approach. With respect, this is not the
issue raised by the appellant. The issue here is whether the Treasury Board
actually adopted the transition measure extending the EET policy to the
applicant. Where the very existence of the decision is being questioned, it is
incumbent on the respondent to prove its existence through cogent and
authoritative evidence. It is not for the appellant to disprove something over
which she has no control and of which she has no direct knowledge.
[32]
The fact
that the publicly available working conditions documents specifically indicate
that the EET policy is no longer in effect also raises a prima facie presumption
that these documents accurately reflect the binding expression of the Treasury
Board’s intention. If these publicly available documents are wrong or
incomplete, it is incumbent on the respondent to submit the proper evidence
required to contradict their terms.
[33]
Section 21
of the Canada Evidence Act sets out the appropriate method by which
evidence of a federal proclamation, order or regulation may be given. For those
proclamations, orders or regulations which are not published in the Canada
Gazette, paragraphs 21(d) and (e) instruct that they may be evidenced by
the production of a copy or extract certified to be true by the clerk or
assistant or acting clerk of the Privy Council, or by the concerned minister,
deputy or acting deputy or by the secretary or acting secretary of the
concerned department:
|
21. Evidence of any proclamation, order, regulation or appointment, made or
issued by the Governor General or by the Governor in Council, or by or under
the authority of any minister or head of any department of the Government of
Canada and evidence of a treaty to which Canada is a party, may be given in
all or any of the following ways:
[…]
(d) by the production, in the case of any
proclamation, order, regulation or appointment made or issued by the Governor
General or by the Governor in Council, of a copy or extract purporting to be
certified to be true by the clerk or assistant or acting clerk of the Queen’s
Privy Council for Canada; and
(e) by the production, in the case of any order,
regulation or appointment made or issued by or under the authority of any
minister or head of a department of the Government of Canada, of a copy or
extract purporting to be certified to be true by the minister, by his deputy
or acting deputy, or by the secretary or acting secretary of the department
over which he presides.
|
21. La preuve de toute proclamation, de tout décret ou
règlement pris, ou de toute nomination faite par le gouverneur général ou par
le gouverneur en conseil, ou par un ministre ou chef de tout ministère du
gouvernement du Canada, ou sous leur autorité, de même que la preuve d’un
traité auquel le Canada est partie, peut être faite par les moyens ou l’un
des moyens suivants :
[…]
d) s’il
s’agit d’une proclamation, d’un décret ou règlement pris par le gouverneur
général ou le gouverneur en conseil, ou d’une nomination faite par lui, la
production d’une expédition ou d’un extrait présenté comme certifié conforme
par le greffier, le greffier adjoint ou le greffier suppléant du Conseil
privé de la Reine pour le Canada;
e) s’il
s’agit d’un décret ou d’un règlement pris, ou d’une nomination faite par
l’autorité ou sous l’autorité d’un tel ministre ou chef de ministère, la
production d’une expédition ou d’un extrait donné comme certifié conforme par
le ministre, ou son sous-ministre ou sous-ministre suppléant, ou par le
secrétaire ou le secrétaire suppléant du ministère qu’il préside.
|
[34]
The
respondent however asserts that it is impeded from disclosing an authoritative
copy of the Treasury Board decision by the operation of section 39 of the Canada
Evidence Act. This section empowers a federal minister or the Clerk of the
Privy Council to object to the disclosure of information by certifying in
writing that the information constitutes a confidence of the Queen’s Privy
Council for Canada. However, in this case no
certification has been provided under section 39. Without such certification,
the respondent’s argument must fail.
[35]
As noted
by Chief Justice McLachlin in Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R.
3 (Babcock) at para. 22, section 39 of the Canada Evidence Act
“is only triggered when there is a valid certification.” Moreover, a
certification is valid “if (1) it is done by the Clerk or minister; (2) it
relates to information within s. 39(2); (3) it is done in a bona fide
exercise of delegated power; (4) it is done to prevent disclosure of hitherto
confidential information” (Babcock at para. 27). The respondent meets
none of these conditions. The reference to or use of section 39 of the Canada
Evidence Act in order to gain a tactical advantage in litigation is
especially frowned upon: Babcock at para. 25.
[36]
In this
case, the respondent refuses to provide any authoritative evidence of the
Treasury Board decision. An adverse inference may be drawn from such a refusal.
This adverse inference can be drawn even where a valid certification is made
under section 39 of the Canada Evidence Act: Babcock at para. 36.
The adverse inference is moreover strengthened in this case where no such
certification exists.
[37]
Finally,
the affidavit from Mr. Thibodeau is not a cure to the refusal of the respondent
to provide an authoritative copy of the Treasury Board decision. There are
several reasons for this:
a. First, the affidavit is
clearly not a substitute for the best evidence which should have been provided
pursuant to the Canada Evidence Act.
b. Second, the assertions in the
affidavit are hearsay, since Mr. Thibodeau is not a member of the Treasury
Board, nor does he purport as an employee to attend meetings of the Treasury
Board. He moreover never explains from which source he obtained the information
he sets out in his affidavit.
c. Third, the use of this affidavit
undermines the very object of the judicial review: the Chair of the CTA relied
on the say-so of Treasury Board officials, and now the Court is asked to do the
same. This approach negates the purpose of judicial review as it impedes the
courts from accessing and interpreting government decisions by instituting a
bureaucratic filter between these decisions and the judiciary.
d. In addition, the affidavit is
ambiguous: it does not state that the EET policy was extended to the
appellant’s position, referring instead to the extension of this policy within
the context of the negotiations of a collective agreement for the LA group, a negotiations
process which does not involve the appellant’s position.
e. Moreover, the affidavit uses
imprecise language, stating that the “the EETP continues to apply to employees
in the LA group who are classified at the LA-3A level and above” which can be
read as to mean that it extends to “some” employees. This affidavit can thus
easily be understood as simply confirming an extension of the EET policy to
those employees at the LA-3A level who are covered by the bargaining unit, an
extension which in any event flows from section 107 of the Public Service Labour
Relations Act.
f.
In the
absence of the actual decision from Treasury Board, it is simply not possible
to conclude with confidence from this affidavit that the EET policy was also
extended to those LA-3A employees who are not included in the LA bargaining
unit.
[38]
Transparency
and accountability are important principles that apply to government actions,
particularly where such actions affect individual rights. As recently noted by
Binnie J., “[t]he transparency and accountability of government are issues of
enormous public importance” (R. v. National Post, 2010 SCC 16, [2010] 1
S.C.R. 477 at para. 70). These principles are not promoted by allowing
government officials to claim “secret” undisclosed exceptions to publicly
available policies and rules affecting individual rights in the absence of
clear statutory authority to do so.
[39]
I would
consequently grant this appeal, set aside the judgment of the applications
judge, quash the decision of the Chair of the CTA denying the appellant’s
grievance, and return the matter to the Chair of the CTA for a new
determination of the appellant’s grievance with the direction to apply to the
appellant the Work Force Adjustment Directive. I would also grant the appellant
her costs in this appeal and in the Federal Court.
"Robert
M. Mainville"
“I
agree
K. Sharlow J.A.”
“I
agree
Johanne Trudel J.A.”
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