Docket: A-243-13
Citation: 2014 FCA 164
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CORAM:
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PELLETIER J.A.
WEBB J.A.
SCOTT J.A.
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BETWEEN:
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PATRICK MCEVOY AND
CLAUDIO PELLICORE
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Appellants
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT
SCOTT J.A.
I.
Background and proceedings
[1]
This is an appeal from a decision of Mandamin J. of the Federal Court
(the Application Judge) dismissing an application for judicial review brought
by the Appellants, Mr. Patrick McEvoy and Mr. Claudio Pellicore against a
decision of the deputy head’s nominee, Ms. Camille Therriault-Power (the Nominee),
responsible for classifications at the Canada Border Services Agency (CBSA).
The Nominee accepted the Classification Grievance Committee’s (the Committee)
recommendation that the classification of the Appellants’ Inland Enforcement
Officer (IEO) position remain the same at the PM-03 group and level and
consequently rejected their grievance.
A. The Committee’s decision
[2]
The Appellants grieved their job classification which was classified at
the PM-03 group and level, contending that their expanded duties following the
introduction of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 warranted a PM-04 group and level classification.
[3]
Under paragraphs 7(1)(e) and 11.1(1)(b) of the Financial
Administration Act, R.S.C. 1985, c. F-11, the Treasury Board is entrusted with
the administration of the staff and the classification of positions within the
public service. Classification grievances are dealt with by a Classification
Grievance Committee in accordance with the following policies: the Policy on
Classification Grievance, the Classification Grievance Procedure, the
Clarification to the Grievance Procedure and Reminder-Classification
Grievance Resolution Process.
[4]
In accordance with the Classification Grievance Procedure, a Classification
Grievance Committee was established to deal with the Appellants’ grievance. It
was composed of three members, a Chairperson, a Treasury Board representative
and the Director General Trade Program Directorate at the CBSA.
[5]
The Committee heard the grievance on November 29, 2009 and during a
second hearing on December 14, 2009. The Appellants and a representative of
their bargaining agent, the Public Service Alliance of Canada (PSAC), made oral and written representations. The Committee equally heard from Mr. Robert
Johnston, the Director responsible for the Inland Enforcement Program in British Columbia and from Ms. Susan Kramer, Acting Director General, Operations Program, on
the duties performed by IEOs.
[6]
Further to these presentations, the Committee requested clarification
from management regarding some of the work actually performed by IEOs. A copy
of the Committee’s questions and CBSA’s responses was provided to the
Appellants. On February 11, 2010, the Appellants filed submissions with
exhibits in reply to the responses of the CBSA. On February 26, 2010, the
Committee reconvened to deliberate.
[7]
The Committee completed its report on March 14, 2010 and signed it on
April 16, 2010. The report unanimously recommended that the grieved position
remain classified at the PM-03 group and level. The report was forwarded to the
Nominee. She approved the recommendation on April 17, 2010. The Nominee’s decision
was sent to the Appellants on April 19, 2010. The Nominee’s letter accompanying
the decision specified that the Committee unanimously recommended that the
position be classified at the PM-03 group and level and that the decision was
final and binding. A copy of the Committee’s report was also enclosed.
[8]
On April 19, 2010, the Nominee wrote a briefing note to the President of
the CBSA. In that note, the Nominee outlined her reasons for endorsing the
unanimous recommendation found in the report and then explained why she thought
that two prior ratings of the position at the PM-04 level by outside
consultants were inaccurate.
[9]
The Appellants filed an application for judicial review of the Nominee’s
decision on May 18, 2010. On November 5, 2010, further to an access to
information request, the Appellants received copies of the briefing note that
was sent by the Nominee to the President of the CBSA, on April 19, 2010.
B. The Federal Court’s
decision
[10]
At the Federal Court, the Appellants argued that the Nominee breached
procedural fairness and natural justice by confirming the Committee’s decision.
They submitted that the Committee prejudged the case, failed to provide
sufficient reasons, and did not consider all the evidence submitted. The
Appellants also contended before the Application Judge that the Nominee had
failed to provide them with the opportunity to respond to the additional considerations
she raised in her briefing note to the President of the CBSA.
[11]
The Application Judge dismissed their application concluding that neither
the Committee nor the Nominee had breached procedural fairness. In light of the
Nominee’s limited role in the process, the Application Judge considered that
the Committee was the de facto decision-maker. He
also found that there was no express requirement that the Nominee provide
reasons for the decision to confirm or reject the Committee’s recommendation.
As the Nominee endorsed the Committee’s unanimous recommendation, the
Application Judge felt that the briefing note sent to the President of the CBSA,
two days after the acceptance of the unanimous recommendation, did not
undermine the Committee’s decision and was superfluous. Hence, there was no
breach of procedural fairness.
[12]
The Application Judge rejected the Appellants’ argument that the
Committee failed to provide sufficient reasons, on the basis that reasons
should address the major points in issue and must set out the reasoning process
followed by the decision-maker. He concluded that the Committee had addressed
all of the Appellants’ submissions.
[13]
The Application Judge equally dismissed the Appellants’ allegation that
the Committee had not considered all of their arguments nor all of the evidence
presented. He found that the Appellants’ submissions on this issue were based
on the assumption that the Committee’s reasons were inadequate whereas he was
satisfied that the Committee had addressed the evidence that went to the main
points at issue.
[14]
The argument that the Committee prejudged the Appellants’ case was also
rejected by the Applications Judge, since the references in the report and the
sequence of responses did not substantiate the Appellants’ contention. He
equally dismissed the argument that Ms. Kramer should not have acted as
management representative because of her prior involvement in the file.
[15]
The Appellants essentially reiterate the submissions made before the
Applications Judge in their appeal to this Court. For the reasons set out
below, I would dismiss this appeal.
II.
Analysis
[16]
On appeal from a decision disposing of a judicial review, the appellate
court must first decide the following questions. Did the reviewing court choose
the correct standard of review and did it apply it correctly? (see Dr. Q v. College of Physicians and Surgeons of
British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226,
at para. 43 and Prairie Acid Rain
Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610, at
para. 14).
[17]
In the case at bar, the Applications Judge correctly selected the
standard of correctness for questions of procedural fairness and the standard
of reasonableness for the decision of the Nominee (see Begin v. Canada (Attorney General), 2009
FC 634, [2009] F.C.J. No. 742, at paras. 8-9 (Begin) and Hagel v. Canada (Attorney General), 2009 FC 329, [2009] F.C.J. No. 417, at paras. 28,
34-35).
[18]
What constitutes a reasonable decision was clarified in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 47. A
decision will be reasonable if it “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.”
[19]
There are four issues raised by the Appellants in this Appeal:
(a)
Did the Nominee owe a duty of procedural
fairness to the Appellants and if so was it breached?
(b)
Did the Committee fail to consider all of the
relevant evidence presented by the Appellants and are its reasons inadequate?
(c)
Did the Committee commit an error in accepting
the evidence given by Ms. Kramer, the management representative?
(d)
Did the Committee prejudge the issue?
A.
The duty of procedural fairness
[20]
The Supreme Court of Canada, in Baker
v. Canada (Minister of Citizenship and Immigration),
[1999] 2 R.C.S. 817, at paragraphs 21 and 22 (Baker),
established that the duty of fairness is flexible, variable, and depends on the
context of the particular statute and the rights affected. In the context of a
classification resolution, the case law has determined that the degree of
procedural fairness owed to the applicant is on the lower end of the spectrum
(see Beauchemin v. Canada (Canadian Food
Inspection Agency), 2008 FC 186, 364 F.T.R. 159,
at paras. 24 and 42, citing Chong v.
Canada (Treasury Board), [1995] F.C.J. No. 693
(QL), [1999] F.C.J. No.176 (QL)).
[21]
As a result, the duty of procedural fairness is satisfied “if the complainants had the opportunity to
make their arguments relating to the classification of their positions and to
be heard and if there was no restriction on their participation” (see Begin,
cited above, at para. 9).
[22]
The Appellants submit that the Nominee relied upon additional
considerations, which were not part of the Committee’s report, without
notifying them. They argue that this constitutes a violation of procedural
fairness and that the Applications Judge erred when he concluded these
considerations were superfluous to the Nominee’s confirmation of the
Committee’s recommendation.
[23]
During the hearing before this Court, the Appellants’ counsel alleged the
Nominee may have rejected the Committee’s recommendation if she had given them
the opportunity to speak to the additional considerations which she raised with
the Deputy Head.
[24]
In my opinion, this argument fails for the following reasons.
[25]
Section VI of the Classification Grievance Procedure sets out the
procedure which must be followed by the nominee when receiving the Committee’s
recommendation. In the case of a unanimous recommendation, as here, the nominee
is limited to either endorsing or rejecting the Committee’s recommendation. Under
the terms of reference, the nominee cannot modify a unanimous recommendation
and substitute her own conclusions.
[26]
In this instance, the Nominee confirmed the Committee’s unanimous recommendation
on April 17, 2010. The briefing note to the President of CBSA was signed two
days later, on April 19, 2010. In that note, the Nominee clearly states why she
endorsed the Committee’s report and then refers to additional considerations of
her own (see the Appellants’ Supplementary Appeal Book, page 30). She wrote:
I feel that the recommendation is sound for the following
reasons:
•
At each juncture, both originally at CIC, and in more recent
decisions from CBSA, this job has been rated at the PM-03 group and level.
•
At the request of the CIU and to reassure the employees that the
file would be analyzed with an unbiased view, an accredited consultant chaired
the most recent hearings and wrote the Classification Grievance Committee
report.
•
The decision was made by a Classifications Grievance Committee
made up of one accredited officer from CBSA, one representative from the
Treasury Board Secretariat, and one CBSA management representative who is
trained in the use of the PM classification standard.
•
The point rating in the latest report situates the job at 440
points, which is at a safe midpoint in the PM-03 scale of 401-500 points.
You will note in the report that two consultants in the past
have rated the job as PM-04, but neither can be considered authoritative. The
first was hired by the CIU and therefore cannot be considered unbiased. The
second consultant was not accredited to provide point ratings, nor did the CBSA
request that he do so. The attached report makes reference to a five-page
history provided by Mr. McEvoy, one of the grievors, in which he suggests that
the CBSA hired this consultant to evaluate the job; however, in reality, the
consultant was hired only to write the job description, for which accreditation
is not required.
[27]
The Appellants’ contention that the Nominee could have possibly rejected
the recommendation is far too speculative. When a Committee unanimously
recommends a classification, the Nominee has very little discretion under the Classification
Grievance Procedure. If the Nominee rejects the unanimous recommendation of
the Committee, the new decision has to be approved by the deputy head, who must
then report to the Treasury Board Secretariat, the reasons for the
non-acceptance of the unanimous recommendation. The reasons provided to the
Treasury Board must be related directly to the recommendations of the
Committee.
[28]
Furthermore, the duty of procedural fairness lies on the lower end of
the scale precisely because of the Nominee’s limited discretion. Given that the
policies governing classification grievances are designed to foster the
acceptance of a unanimous decision, little weight can be put on parenthetical
comments. Moreover, these additional comments of the Nominee appear to preempt
questions that the President of the CBSA could possibly raise because two
consultants had suggested a higher rating in the past.
[29]
In my opinion, it is difficult to conclude that these comments constitute
the Nominee’s rationale as argued by the Appellants, as well as that the Nominee
consequently breached her duty of procedural fairness by failing to allow the
Appellants to comment on her briefing note.
B.
Inadequacy of reasons and failure to consider evidence
[30]
The Appellants contend that the Committee’s reasons are deficient in
that they fail to meet the requirements outlined in Annex 1 of the Classification
Grievance Procedure. They argue that the reasons fail to provide any
meaningful analysis of the substantive issues in dispute. The Appellants claim
that the Committee did not analyze the differences between their position as
IEOs and the positions that they referenced in their relativity study. They
allege that there is no indication that the Committee in fact considered these
positions. Consequently, it is their view that they cannot assess how the
Committee resolved the discrepancies in the evidence submitted.
[31]
Moreover, the Appellants allege that the Committee failed to consider
their response to Mr. Johnston’s and to Ms. Kramer’s evidence. The
Appellants also assert that in their response to Ms. Kramer’s factual
information, they demonstrated significant differences between their evidence
and their employer’s evidence in terms of IEO’s responsibilities which the
Committee failed to assess and comment upon.
[32]
Having reviewed the record, I cannot agree with these assertions. The
Committee’s report summarized the Appellants’ presentation in detail (see the Committee
Report, Appeal Book, volume V, pages 1886 to 1889). It then proceeded to
present the questions addressed to Ms. Kramer, the management representative,
and her responses that were shared with both the grievors and the PSAC
representative.
[33]
The Committee dealt initially with the PSAC proposal, clearly stating
where it disagreed with the proposed classification and the reasons for its
disagreement (see the Committee Report, Appeal Book, volume V, pages 1884 to 1886).
It then proceeded in a similar fashion with respect to the Grievors’ and the
consultants’ proposed rating (see the Committee Report, Appeal Book, volume V,
pages 1886 to 1889). The Committee acknowledged the four comparative positions
suggested by the grievors in their relativity study, namely, Customs
Investigator, Immigration Member, Hearing Officer and Tariff Classification
Policy Specialist, pointing out where it disagreed with the comparison based on
four criteria used to assess the IEO position, that is: Knowledge, Decision-Making,
Operational Responsibility and Contacts.
[34]
The Committee equally considered the added responsibilities resulting from
the coming into force of the IRPA. At page 1885 of the Appeal Book, the
Committee refers to Ms. Wight’s assessment of these new responsibilities, and
at page 1887 it references the submissions of the grievors and the fact that
two significant authorities were delegated to the IEOs.
[35]
For these reasons, I find that the Appellants have failed to convince me
that the Committee did not address their arguments. Furthermore, as this review
of the Committee’s report shows, the Committee’s reasons were adequate to
permit appellate review.
C.
Evidence given by Ms. Kramer the management representative
[36]
The Appellants submit that the Committee should not have heard Ms.
Kramer, the management representative, because they believed that she was not
an impartial witness. Their concerns result from her prior involvement in the
classification decision that was the subject of the grievance before the
Committee. They allege that Ms. Kramer had, in the past, advocated for the
existing classification based on inaccurate evidence. The Appellants claim that
the Committee did not address their concerns and did not provide any analysis
or reasons for ignoring them.
[37]
The Appellants emphasize the role of the management representative and
the fact that it is not permitted to argue for or against the decision which
led to the grievance, nor to attempt to influence any members. The Appellants also
underlined the fact that several CBSA employees had been invited to attend as
management representatives, but had declined because of their prior involvement
in activities related to the classification of the IEO position.
[38]
The Appellants misstate their argument. Ms. Kramer was a competent witness.
The Appellants’ arguments that she should not have been called as a management
representative because they feared she was biased on account of her previous
involvement are unfounded. A person can be called to testify whether she is
biased or not. The other party has the opportunity to attack the person’s
credibility by demonstrating bias in the witness’ testimony.
[39]
The Appellants have failed to point out any evidence of bias in her
testimony. Their mere allegation that Ms. Kramer purposely misled the Committee
is not substantiated by the record. Furthermore, they have not established that
Ms. Kramer actually argued in favour of the existing classification or adopted
such a position when providing information to the Committee or acted in any way
contrary to the Classification Grievance Procedure. In view of their
failure to direct the Court to any substantive evidence sufficient to attack
Ms. Kramer’s credibility as a witness, I reject the Appellants’ argument.
D.
Prejudgment
[40]
The Appellants claim that the Committee prejudged their grievance since
it stated at page 16 of its report that: “Further to the union’s response of February 11, 2010, the Committee
reconvened on February 26 to review the union response. After giving careful
consideration to the evidence submitted the Committee reached consensus that
the new information would not change their decision” (see the Committee
Report, Appeal book, volume V, page 1898).
[41]
In order to establish that the Committee had prejudged their
reclassification request, the Appellants had to prove that “any representations at variance with the
view, which has been adopted, would be futile” (see Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, at para. 57).
They have not proven this to be the case. The statement does not indicate that
the Committee had a closed mind and that any submissions would be futile.
[42]
Furthermore, a decision-maker is not precluded from making a decision as
he progressively receives evidence since it is normal to weigh different
factors as they come to bear. This is part of the decision-making process.
[43]
The statement “[…] After giving
careful consideration to the evidence submitted the Committee reached consensus
that the new information would not change their decision”, as I
read it, can be interpreted as meaning that after weighing the new information,
it did not outweigh the other evidence which warranted maintaining the classification
level as it was. Therefore, it did not “change the decision”.
In other words, based on its analysis of the relativity study and the parties’
submissions, the Committee found that the classification should remain the
same, and the union’s response did not justify another conclusion. This does
not prove that the Committee failed to consider the new information or that it
prejudged the issue.
[44]
The statement must be understood in its proper context. The important
element being whether the Committee remained open to assess and evaluate the
additional evidence adduced. There is no evidence to the contrary in the
present case.
[45]
In sum, the Applications Judge selected the appropriate standards
of review and applied them correctly. I would, therefore, dismiss the appeal
with costs in favour of the respondent set at $3,000.
"A.F. Scott"
“I
agree.
J.D. Denis Pelletier J.A.”
“I
agree.
Wyman W.
Webb J.A.”
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