Date: 20060206
Docket: A-263-05
Citation: 2006 FCA 50
CORAM: RICHARD C.J.
NOËL J.A.
MALONE J.A.
BETWEEN:
STAN EKSAL and CHUCK LOVALLO
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on February 1, 2006.
Judgment delivered at Ottawa, Ontario, on February 6, 2006.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: RICHARD C.J.
MALONE J.A.
Date: 20060206
Docket: A-263-05
Citation: 2006 CAF 50
CORAM: RICHARD C.J.
NOËL J.A.
MALONE J.A.
BETWEEN:
STAN EKSAL and CHUCK LOVALLO
Appellants
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an appeal from a decision of Snider J. of the Federal Court dated May 25, 2005, (2005 FC 741) dismissing an application for judicial review filed by Stan Eksal and Chuck Lovallo (the "appellants") against a decision of the Classification Grievance Committee ("CGC") of the Canada Revenue Agency ("CRA") dated July 28, 2004.
Background
[2] The appellants were regional zone managers in the Pacific Region with the CRA. They filed a grievance seeking to be reclassified to the MG group, which was allowed. They pursued their grievance seeking to be reclassified from level MG 05 to MG 06 in the MG group.
[3] The success of their grievance depended on whether the Degree of responsibility which the appellants' position entailed was Degree 5 or Degree 6 under the rating scale set out in the Agency Classification Standard ("ACS"). In order to succeed, the appellants had to demonstrate that the appropriate Degree of responsibility under that scale was Degree 6.
[4] Of particular significance to the resolution of this dispute are the "Notes on Specific Degrees" comprised in the ACS (Appeal Book, Vol. II, p. 282) (the "Notes") which provide that "[a] manager at Degree 6 would normally manage subordinate managers [...]" [Emphasis added.] The appellants' job description does not require multiple subordinate supervision. However, they argued that the fact that multiple subordinate supervision is "normally" required demonstrates that this is not always the case.
[5] In support of the contention that multiple subordinate supervision was not required in their case, the appellants relied on another position (the MG 0305 position) which they say is comparable to theirs. Although the job description for the MG 0305 position does require multiple subordinate supervision, the respondents relied on the fact that the incumbents in that position are not in fact
performing that function. The appellants argued before the CGC that, as for the MG 0305 position, multiple subordinate supervision should not be viewed as a requirement.
[6] The CGC observed that the fact the incumbents in the MG 0305 position may not be performing the required supervisory function is not something which they have the mandate to address. It noted that Degree 6 for the MG 0305 position was consistent with the requirement that there be multiple subordinate supervision since the job description so provided. The CGC went on to hold that Degree 5 had to be maintained as the appellants' job description did not require that they manage through more than one manager.
[7] The appellants sought judicial review of the CGC decision before the Federal Court. Their application was dismissed on May 25, 2005, and the present appeal ensued.
Decision Under Appeal
[8] Snider J. concluded that the CGC acted properly in focusing on the job description. She noted that the MG 0305 description contained a leadership requirement that incumbents manage through more than one subordinate supervisor (Reasons, paragraphs 10 to 16). Snider J. agreed with the CGC that whether the required duties were in fact being performed by the incumbents was not relevant to the issue which the CGC had to decide and therefore declined to intervene.
Decision
[9] The appellants contend that Snider J. erred in law in declining to refer the matter back to the CGC on the basis that the CGC failed to have regard to a relevant consideration.
[10] In my view, Snider J. correctly held that the fact that the incumbents in the MG 0305 position are not performing multiple supervision was irrelevant. In the absence of evidence to the contrary, it must be assumed that at the time the MG 0305 positions were filled, the successful candidates met all the requirements specified in the job description. The fact that the incumbents may be called upon to fulfil only some of those requirements does not modify the job description or establish that the requirements which it embodies are no longer in effect. Indeed, it will be a rare case where an employee is called upon to fulfil all the requirements embodied in a job description all of the time. It follows that as was held by Snider J. the only useful comparison which can be made is to the job description.
[11] I, therefore, agree with Snider J. that, applying the standard of review that is most favourable to the appellants in this case, i.e. reasonableness simpliciter, it has not been shown that the CGC committed a reviewable error in holding that the actual duties performed by the holders of the MG 0305 position were not relevant to its analysis.
[12] I would dismiss the appeal with costs.
"Marc Noël"
"I agree.
J. Richard C.J."
"I agree.
B. Malone J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-263-05
APPEAL FROM AN ORDER OF THE Federal CourtDATED MAY 25, 2005, NO. T-1533-04
STYLE OF CAUSE: Stan Eksal and Chuck Lovallo v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 1, 2006
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Richard C.J.
Malone J.A.
DATED: February 6, 2006
APPEARANCES:
| Dougald E. Brown
|
FOR THE APPELLANTS
|
| Stéphane Hould
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Nelligan O'Brien Payne LLP, Ottawa, Ontario
|
FOR THE APPELLANTS
|
| John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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