Date: 20090311
Docket: A-113-08
Citation: 2009 FCA 76
CORAM: RICHARD
C.J.
SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
FRANCE GILBERT
Respondent
REASONS FOR JUDGMENT
RICHARD C.J.
[1]
This is an
appeal of the decision of Justice Mactavish of the Federal Court, 2008 FC 202, in
which she allowed an application for judicial review from the decision of the
Director of the Organization and Classification Directorate of the Royal
Canadian Mounted Police, with respect to the respondent’s classification
grievance.
[2]
The
respondent is a Strategic Planning Analyst with the Royal Canadian Mounted Police.
In June 2004, she grieved the classification of her position, which was
classified as an AS-04 and requested that her position be classified at the
AS-05 level.
[3]
In
accordance with the procedures established by Treasury Board, the respondent’s
classification grievance was heard by a Classification Review Committee, which
then prepared a report and recommendation to the Director, Organization and
Classification, (the Director), who was the Deputy Head’s nominee for
classification grievances.
[4]
The Administrative
Services Classification Standard, which governs the classification of Ms.
Gilbert’s position, identifies four factors to be used in evaluating positions:
knowledge, decision making, responsibility for contacts and supervision. The
knowledge factor is divided into three elements: education, experience and
continuing study.
[5]
On
September 15, 2006, the Director, Brian Preston, rendered his decision on the
classification grievance. The decision confirmed the recommendation that had
been made to the Director by the Classification Grievance Committee, and
dismissed the grievance.
[6]
The
respondent commenced an application for judicial review of that decision on
October 16, 2006.
[7]
Following the
commencement of the application for judicial review and by letter dated January
24, 2007, the respondent was informed by the Manager, Classification
Grievances, Public Service Human Resources Agency of Canada that the decision
of Brian Preston dated September 15, 2006, which approved the
Classification Grievance Committee decision and recommendation, would be set
aside and that a new hearing would take place.
[8]
As noted
by the Applications Judge in her Reasons for Judgment (para. 24), it is not
clear who it was that actually made the decision to rescind the Director’s decision.
[9]
The
respondent did not agree to attend before a new Classification Grievance
Committee and proceeded with her application for judicial review.
[10]
Before the
Applications Judge, the appellant argued that the application for judicial
review had become moot by reason of the decision to rescind the Director’s
decision and order a new Classification Grievance Committee hearing.
[11]
We agree with
the Applications Judge that the application for judicial review is not moot in
the circumstance of this case where the application was taken before the
purported rescission.
[12]
We do not
however agree with the reliance of the Applications Judge on subsection 96(3)
of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, (PSSRA)
for reaching this result.
[13]
The appellant
does not otherwise challenge the Applications Judge’s decision to set aside the
Director’s decision. What the appellant challenges is the relief granting the
respondent an Order that the matter be remitted to the Director with the
direction that the respondent’s position be assigned a “C” level for the
“Education” factor identified in the Classification Standard.
[14]
We are of
the view that the appeal should be allowed on this limited ground only for the
following reasons.
[15]
The
ability to classify and re-classify positions within the public service is the
exclusive authority of Treasury Board.
[16]
Section 7
of the PSSRA gives the employer “the right or authority … to determine
the organization of the Public Service and to assign duties to and classify
positions therein”. It also specifies that nothing in the PSSRA should
be construed to affect such right or authority. The PSSRA defines
“employer” as being Treasury Board for all departments and other portions of
the public service listed in Schedule I to the Financial Administration Act,
R.S.C. 1985, c. F-11 (the FAA). Schedule I includes the R.C.M.P., where
the respondent works.
[17]
A
classification grievance is presented to a Classification Grievance Committee,
which then makes a recommendation to the Deputy Head or the nominee of the
Deputy Head. In the case at bar, the Deputy Head’s nominee was the Director.
The Director then has the discretion to accept a recommendation made by the
Classification Grievance Committee, to make a decision in the event that the Committee
provided majority/minority reports, or to make an entirely new decision.
[18]
If an
employee is dissatisfied with the outcome of a classification grievance
decision then he or she has the right of judicial review.
[19]
The
Applications Judge stated that the Classification Grievance Committee erred in
assigning a “B” rating for the Education factor of the respondent’s position.
She added: “Nor is there any question that if the position is assigned a “C”
level for the education factor, that the points assigned to the position will
require reclassification of the position to the AS‑05 level” (at para.
55).
[20]
As a
result, the Applications Judge ordered that: “the case should be remitted to
the Director of the Organization and Classification Directorate with the
direction that Ms. Gilbert’s position be assigned a “C” level for the Education
element of the Classification Standard” (at para 58).
[21]
Classification
of positions in the federal public service is a complex analysis, involving a
number of related factors.
[22]
Accordingly,
the decisions resulting from classification grievances are reflective of a high
level of expertise from the Classification Grievance Committee and the decision
maker, who operate under a particular and specialised regime.
[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.
[24]
Accordingly,
we will allow the appeal in part by ordering that the decision of the Director
dated September 15, 2006 be set aside and that the matter be remitted to the
Director for a further decision.
[25]
In these
circumstances, there will be no award of costs in this Court to either party.
"J.
Richard"
"I
agree
K. Sharlow J.A."
"I
agree
Carolyn Layden-Stevenson J.A."
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